Idaho Code 51-114A – Notarial Act Performed by Remotely Located Individual

(1) As used in this section:

(a) "Communication technology" means an electronic device or process that:

(i) Allows a notary public and a remotely located individual to communicate with each other simultaneously by sight and sound; and

(ii) When necessary and consistent with other applicable law, facilitates communication with a remotely located individual who has a vision, hearing, or speech impairment.

(b) "Foreign state" means a jurisdiction other than the United States, a state, or a federally recognized Indian tribe.

(c) "Identity proofing" means a process or service by which a third person provides a notary public with a means to verify the identity of a remotely located individual by a review of personal information from public or private data sources.

(d) "Outside the United States" means a location outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, and any territory, insular possession, or other location subject to the jurisdiction of the United States.

(e) "Remotely located individual" means an individual who is not in the physical presence of the notary public who performs a notarial act under subsection (3) of this section.

(2) A remotely located individual may comply with the provisions of section 51-106, Idaho Code, by appearing before a notary public by means of communication technology.

Terms Used In Idaho Code 51-114A

Electronic: means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities. See Idaho Code 51-102
Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
Notarial act: means an act, whether performed with respect to a tangible or electronic record, that a notarial officer may perform under the law of this state. See Idaho Code 51-102
Notary public: means an individual commissioned to perform a notarial act by the secretary of state. See Idaho Code 51-102
Oath: A promise to tell the truth.
Person: means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency or instrumentality, or any other legal entity. See Idaho Code 51-102
Property: includes both real and personal property. See Idaho Code 73-114
Record: means information inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. See Idaho Code 51-102
Signature: means a tangible symbol or an electronic signature that evidences the signing of a record. See Idaho Code 51-102
State: means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States. See Idaho Code 51-102

(3) A notary public located in this state may perform a notarial act using communication technology for a remotely located individual if:

(a) The notary public:

(i) Has personal knowledge under section 51-107(1), Idaho Code, of the identity of the individual;

(ii) Has satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the notary public under section 51-107(2), Idaho Code, or under this section; or

(iii) Has obtained satisfactory evidence of the identity of the remotely located individual by using at least two (2) different types of identity proofing.

(b) The notary public is able reasonably to confirm the record before the notary public as the same record in which the remotely located individual made a statement or on which the remotely located individual executed a signature;

(c) The notary public, or a person acting on behalf of the notary public, creates an audio-visual recording of the performance of the notarial act; and

(d) For a remotely located individual located outside the United States:

(i) The record:

1. Is to be filed with or relates to a matter before a court, governmental entity, public official, or other entity subject to the jurisdiction of the United States; or

2. Involves property located in the territorial jurisdiction of the United States or a transaction substantially connected with the United States; and

(ii) The act of making the statement or signing the record is not prohibited by the foreign state in which the remotely located individual is located.

(4) If a notarial act is performed under this section, the certificate of notarial act required by section 51-115, Idaho Code, and the short form certificate provided in section 51-116, Idaho Code, must indicate that the notarial act was performed using communication technology.

(5) A short form certificate provided in section 51-116, Idaho Code, for a notarial act subject to this section is sufficient if it:

(a) Complies with rules adopted under subsection (8)(a) of this section; or

(b) Is in the form provided by section 51-116, Idaho Code, and contains a statement substantially as follows: "This notarial act involved the use of communication technology."

(6) A notary public, a guardian, conservator, or agent of a notary public, or a personal representative of a deceased notary public, shall retain the audio-visual recording created under subsection (3)(c) of this section or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording. The recording must be retained for at least ten (10) years after the recording is made or as otherwise required by rule adopted under subsection (8)(d) of this section.

(7) Before a notary public performs the notary public’s initial notarial act under this section, the notary public shall notify the secretary of state that the notary public will be performing notarial acts facilitated by communication technology and identify the technology. If the secretary of state has established standards for approval of communication technology or identity proofing under subsection (8) of this section and section 51-127, Idaho Code, the communication technology and identity proofing must conform to the standards.

(8) In addition to adopting rules under section 51-127, Idaho Code, the secretary of state shall adopt rules under this section regarding performance of a notarial act. The rules:

(a) Shall prescribe the means of performing a notarial act involving a remotely located individual using communication technology;

(b) Shall establish standards for communication technology and identity proofing;

(c) May establish requirements or procedures to approve providers of communication technology and the process of identity proofing; and

(d) May establish standards and a period for the retention of an audio-visual recording created under subsection (3)(c) of this section.

(9) Before adopting, amending, or repealing a rule governing performance of a notarial act with respect to a remotely located individual, the secretary of state shall consider:

(a) The most recent standards regarding the performance of a notarial act with respect to a remotely located individual promulgated by national standard-setting organizations and the national association of secretaries of state;

(b) Standards, practices, and customs of other jurisdictions that have laws substantially similar to this section; and