5 ILCS 312/ Illinois Notary Public Act.

(5 ILCS 312/6A-102)

Sec. 6A-102. Electronic notary not liable for system failure. An electronic notary public who exercised reasonable care enrolling in and using an electronic notarization system shall not be liable for any damages resulting from the system's failure to comply with the requirements of this Act. Any provision in a contract or agreement between the electronic notary public and provider that attempts to waive this immunity shall be null, void, and of no effect.

(Source: P.A. 102-160, eff. 6-5-23 (See Section 91 of P.A. 103-652 for effective date of P.A. 102-160).)

(5 ILCS 312/6A-103)

Sec. 6A-103. Electronic notarial acts.

(a) An electronic notary public:

(1) is a notary public for purposes of this Act and is subject to all provisions of this Act;

(2) may perform notarial acts as provided by this Act in addition to performing electronic notarizations; and

(3) may perform an electronic notarization authorized under this Article.

(b) In performing an electronic notarization, an electronic notary public shall verify the identity of a person creating an electronic signature at the time that the signature is taken by using two-way audio and video conference technology that meets the requirements of this Act and rules adopted under this Article. For the purposes of performing an electronic notarial act for a person using audio-video communication, an electronic notary public has satisfactory or documentary evidence of the identity of the person if the electronic notary public confirms the identity of the person by:

(1) the electronic notary public's personal knowledge of the person creating the electronic signature; or

(2) each of the following:

(A) remote electronic presentation by the person creating the electronic signature of a government-issued identification credential, including a passport or driver's license, that contains the signature and a photograph of the person;

(B) credential analysis of the front and back of the government-issued identification credential and the data thereon; and

(C) a dynamic knowledge-based authentication assessment.

(c) An electronic notary public may perform any of the acts set forth in Section 6-102 using audio-video communication in accordance with this Section and any rules adopted by the Secretary of State.

(d) If an electronic notarial act is performed using audio-video communication:

(1) the technology must allow the persons communicating to see and speak to each other simultaneously;

(2) the signal transmission must be in real time; and

(3) the electronic notarial act must be recorded.

(e) The validity of the electronic notarial act will be determined by applying the laws of the State of Illinois.

(f) The electronic notarial certificate for an electronic notarization must include a notation that the notarization is an electronic notarization.

(g) When performing an electronic notarization, an electronic notary public shall complete an electronic notarial certificate and attach or logically associate the electronic notary's electronic signature and seal to that certificate in a tamper evident manner. Evidence of tampering pursuant to this standard may be used to determine whether the electronic notarial act is valid or invalid.

(h) The liability, sanctions, and remedies for improper performance of electronic notarial acts are the same as described and provided by law for the improper performance of non-electronic notarial acts as described under Section 7-108.

(i) Electronic notarial acts need to fulfill certain basic requirements to ensure non-repudiation and the capability of being authenticated by the Secretary of State for purposes of issuing apostilles and certificates of authentication. The requirements are as follows:

(1) the fact of the electronic notarial act, including the electronic notary's identity, signature, and electronic commission status, must be verifiable by the Secretary of State; and

(2) the notarized electronic document will be rendered ineligible for authentication by the Secretary of State if it is improperly modified after the time of electronic notarization, including any unauthorized alterations to the document content, the electronic notarial certificate, the electronic notary public's electronic signature, or the electronic notary public's official electronic seal.

(Source: P.A. 102-160, eff. 6-5-23 (See Section 91 of P.A. 103-562 for effective date of P.A. 102-160).)

(5 ILCS 312/6A-104)

Sec. 6A-104. Requirements for audio-video communication.

(a) An electronic notary public shall arrange for a recording to be made of each electronic notarial act performed using audio-video communication. The audio-video recording required by this Section shall be in addition to the journal entry for the electronic notarial act required by Section 3-107. Before performing any electronic notarial act using audio-video communication, the electronic notary public must inform all participating persons that the electronic notarization will be electronically recorded.

(b) If the person for whom the electronic notarial act is being performed is identified by personal knowledge, the recording of the electronic notarial act must include an explanation by the electronic notary public as to how he or she knows the person and how long he or she has known the person.

(c) If the person for whom the electronic notarial act is being performed is identified by a credible witness:

(1) the credible witness must appear before the electronic notary public; and

(2) the recording of the electronic notarial act must include:

(A) a statement by the electronic notary public as to whether he or she identified the credible witness by personal knowledge or satisfactory evidence; and

(B) an explanation by the credible witness as to how he or she knows the person for whom the electronic notarial act is being performed and how long he or she has known the person.

(d) An electronic notary public shall keep a recording made pursuant to this Section for a period of not less than 7 years, regardless of whether the electronic notarial act was actually completed.

(e) An electronic notary public who performs an electronic notarial act for a principal by means of audio-video communication shall be located within the State of Illinois at the time the electronic notarial act is performed. The electronic notary public shall include a statement in the electronic notarial certificate to indicate that the electronic notarial act was performed by means of audio-video communication. The statement may also be included in the electronic notarial seal.

(f) An electronic notary public who performs an electronic notarial act for a principal by means of audio-video communication shall:

(1) be located within this State at the time the electronic notarial act is performed;

(2) execute the electronic notarial act in a single recorded session that complies with Section 6A-103;

(3) be satisfied that any electronic record that is electronically signed, acknowledged, or otherwise presented for electronic notarization by the principal is the same record electronically signed by the electronic notary;

(4) be satisfied that the quality of the audio-video communication is sufficient to make the determination required for the electronic notarial act under this Act and any other law of this State; and

(5) identify the venue for the electronic notarial act as the jurisdiction within Illinois where the notary is physically located while performing the act.

(g) An electronic notarization system used to perform electronic notarial acts by means of audio-video communication shall conform to the requirements set forth in this Act and by administrative rules adopted by the Secretary of State.

(h) The provisions of Section 3-107 related respectively to security, inspection, copying, and disposition of the journal shall also apply to security, inspection, copying, and disposition of audio-video recordings required by this Section.

(i) The Secretary of State shall adopt administrative rules to implement this Section.

(Source: P.A. 102-160, eff. 6-5-23 (See Section 91 of P.A. 103-562 for effective date of P.A. 102-160).)

(5 ILCS 312/6A-105)

Sec. 6A-105. Electronic certificate of notarial acts.

(a) An electronic notarial certificate must be evidenced by an electronic notarial certificate signed and dated by the electronic notary public. The electronic notarial certificate must include identification of the jurisdiction in which the electronic notarial act is performed and the electronic seal of the electronic notary public.

(b) An electronic notarial certificate of an electronic notarial act is sufficient if it meets the requirements of subsection (a) and it:

(1) is in the short form set forth in 6-105;

(2) is in a form otherwise prescribed by the law of this State; or

(3) sets forth the actions of the electronic notary public and those are sufficient to meet the requirements of the designated electronic notarial act.

(c) At the time of an electronic notarial act, an electronic notary public shall electronically sign every electronic notarial certificate and electronically affix the electronic seal clearly and legibly, so that it is capable of photographic reproduction. The illegibility of any of the information required under this Section does not affect the validity of a transaction.

(Source: P.A. 102-160, eff. 6-5-23 (See Section 91 of P.A. 103-562 for effective date of P.A. 102-160).)

(5 ILCS 312/6A-106)

Sec. 6A-106. Electronic acknowledgments; physical presence.

(a) For purposes of this Act, a person may appear before the person taking the acknowledgment by:

(1) being in the same physical location as the other person and close enough to see, hear, communicate with, and exchange tangible identification credentials with that person; or

(2) being outside the physical presence of the other person, but interacting with the other person by means of communication technology.

(b) If the acknowledging person is outside the physical presence of the person taking the acknowledgment, the certification of acknowledgment must indicate that the notarial act was performed by means of communication technology. A form of certificate of acknowledgment as provided by the Secretary of State, which may include the use of a remote online notarial certificate, is sufficient for purposes of this subsection (b) if it substantially reads as follows: "The foregoing instrument was acknowledged before me by means of communication technology this (date) by … (each form continued as sufficient for its respective purposes.)".

(Source: P.A. 102-160, eff. 6-5-23 (See Section 91 of P.A. 103-562 for effective date of P.A. 102-160).)

(5 ILCS 312/Art. VII heading) ARTICLE VII LIABILITY AND REVOCATION

(5 ILCS 312/7-101) (from Ch. 102, par. 207-101)

Sec. 7-101. Liability of notary and surety. A notary public and the surety on the notary's bond are liable to the persons involved for all damages caused by the notary's official misconduct. Upon the filing of any claim against a notary public, the entity that has issued the bond for the notary shall notify the Secretary of State of whether payment was made and the circumstances which led to the claim.

(Source: P.A. 100-809, eff. 1-1-19.)

(5 ILCS 312/7-102) (from Ch. 102, par. 207-102)

Sec. 7-102. Liability of Employer of Notary. The employer of a notary public is also liable to the persons involved for all damages caused by the notary's official misconduct, if:

(a) the notary public was acting within the scope of the notary's employment at the time the notary engaged in the official misconduct; and

(b) the employer consented to the notary public's official misconduct.

(Source: P.A. 84-322.)

(5 ILCS 312/7-103) (from Ch. 102, par. 207-103)

Sec. 7-103. Cause of Damages. It is not essential to a recovery of damages that a notary's official misconduct be the only cause of the damages.

(Source: P.A. 84-322.)

(5 ILCS 312/7-104) (from Ch. 102, par. 207-104)

Sec. 7-104. Official Misconduct Defined. The term "official misconduct" generally means the wrongful exercise of a power or the wrongful performance of a duty and is fully defined in Section 33-3 of the Criminal Code of 2012. The term "wrongful" as used in the definition of official misconduct means unauthorized, unlawful, abusive, negligent, reckless, or injurious.

(Source: P.A. 97-1150, eff. 1-25-13.)

(5 ILCS 312/7-105) (from Ch. 102, par. 207-105)

Sec. 7-105. Official Misconduct.

(a) A notary public who knowingly and willfully commits any official misconduct is guilty of a Class A misdemeanor.

(b) A notary public who recklessly or negligently commits any official misconduct is guilty of a Class B misdemeanor.

(Source: P.A. 84-322.)

(5 ILCS 312/7-106) (from Ch. 102, par. 207-106)

Sec. 7-106. Willful impersonation.

(a) Any person who acts as, or otherwise willfully impersonates, a notary public while not lawfully appointed and commissioned to perform notarial acts is guilty of a Class A misdemeanor.

(b) Any notary public or other person who is not an electronic notary public that impersonates an electronic notary public to perform electronic notarial acts is guilty of a Class A misdemeanor.

(Source: P.A. 102-160, eff. 6-5-23 (See Section 91 of P.A. 103-562 for effective date of P.A. 102-160).)

(5 ILCS 312/7-107) (from Ch. 102, par. 207-107)

Sec. 7-107. Wrongful possession.

(a) No person may unlawfully possess, obtain, conceal, damage, or destroy a notary's official seal.

(b) No person may unlawfully possess, conceal, damage, or destroy the certificate, disk, coding, card, program, software, or hardware enabling an electronic notary public to affix an official electronic signature or seal.

(c) Any person who violates this Section shall be guilty of a misdemeanor and punishable upon conviction by a fine not exceeding $1,000.

(Source: P.A. 102-160, eff. 6-5-23 (See Section 91 of P.A. 103-562 for effective date of P.A. 102-160).)

(5 ILCS 312/7-108) (from Ch. 102, par. 207-108)

Sec. 7-108. Reprimand, suspension, and revocation of commission.

(a) The Secretary of State may revoke the commission of any notary public who, during the current term of appointment:

(1) submits an application for commission and appointment as a notary public which contains substantial and material misstatement or omission of fact;

(2) is convicted of any felony, misdemeanors, including those defined in Part C, Articles 16, 17, 18, 19, and 21, and Part E, Articles 31, 32, and 33 of the Criminal Code of 2012, or official misconduct under this Act; or

(3) is a licensed attorney and has been sanctioned, suspended, or disbarred by the Illinois Attorney Registration and Disciplinary Commission or the Illinois Supreme Court.

(b) Whenever the Secretary of State believes that a violation of this Article has occurred, he or she may investigate any such violation. The Secretary may also investigate possible violations of this Article upon a signed written complaint on a form designated by the Secretary.

(c) A notary's failure to cooperate or respond to an investigation by the Secretary of State is a failure by the notary to fully and faithfully discharge the responsibilities and duties of a notary and shall result in suspension or revocation of the notary's commission or the electronic notary's commission.

(d) All written complaints which on their face appear to establish facts which, if proven true, would constitute an act of misrepresentation or fraud in notarization or electronic notarization, or misrepresentation or fraud on the part of the notary, may be investigated by the Secretary of State to determine whether cause exists to reprimand, suspend, or revoke the commission of the notary.

(e) The Secretary of State may deliver a written official warning and reprimand to a notary, or may revoke or suspend a notary's commission or an electronic notary's commission, for any of the following:

(1) a notary's official misconduct, as defined under Section 7-104;

(2) any ground for which an application for appointment as a notary may be denied for failure to complete application requirements as provided under Section 2-102;

(3) any prohibited act provided under Section 6-104; or

(4) a violation of any provision of the general statutes.

(f) After investigation and upon a determination by the Secretary of State that one or more prohibited acts have been performed in the notarization or electronic notarization of a document, the Secretary shall, after considering the extent of the prohibited act and the degree of culpability of the notary, order one or more of the following courses of action:

(1) issue a letter of warning to the notary, including the Secretary's findings;

(2) order suspension of the commission of the notary or electronic commission of the notary for a period of time designated by the Secretary;

(3) order revocation of the commission of the notary or electronic commission of the notary;

(4) refer the allegations to the appropriate State's Attorney's Office or the Attorney General for criminal investigation; or

(5) refer the allegations to the Illinois Attorney Registration and Disciplinary Commission for disciplinary proceedings.

(g) After a notary receives notice from the Secretary of State that his or her commission has been revoked, that notary shall immediately deliver his or her official seal to the Secretary. After an electronic notary public receives notice from the Secretary of State that his or her electronic commission has been revoked, the electronic notary public shall immediately notify the electronic notary's chosen technology provider, and to the extent possible, destroy or remove the software used for electronic notarizations.

(h) A notary whose appointment has been revoked due to a violation of this Act shall not be eligible for a new commission as a notary public in this State for a period of at least 5 years from the date of the final revocation.

(i) A notary may voluntarily resign from appointment by notifying the Secretary of State in writing of his or her intention to do so, and by physically returning his or her stamp to the Secretary. An electronic notary public may voluntarily resign from appointment by notifying the Secretary of State in writing of his or her intention to do so, and by notifying the electronic notary's chosen technology provider, and to the extent possible, destroy or remove the software used for electronic notarizations. A voluntary resignation shall not stop or preclude any investigation into a notary's conduct, or prevent further suspension or revocation by the Secretary, who may pursue any such investigation to a conclusion and issue any finding.

(j) Upon a determination by a sworn law enforcement officer that the allegations raised by the complaint are founded, and the notary has received notice of suspension or revocation from the Secretary of State, the notary is entitled to an administrative hearing.

(k) The Secretary of State shall adopt administrative hearing rules applicable to this Section that are consistent with the Illinois Administrative Procedure Act.

(l) Any revocation, resignation, expiration, or suspension of the commission of a notary public terminates or suspends any commission to notarize electronically.

(m) A notary public may terminate registration to notarize electronically and maintain his or her underlying notary public commission upon directing a written notification of the change to the Secretary of State within 30 days.

(Source: P.A. 102-160, eff. 6-5-23 (See Section 91 of P.A. 103-562 for effective date of P.A. 102-160).)

(5 ILCS 312/7-109) (from Ch. 102, par. 207-109)

Sec. 7-109. Action for Injunction, Unauthorized Practice of Law. Upon his own information or upon complaint of any person, the Attorney General or any State's Attorney, or their designee, may maintain an action for injunctive relief in the circuit court against any notary public who renders, offers to render, or holds himself or herself out as rendering any service constituting the unauthorized practice of the law. Any organized bar association in this State may intervene in the action, at any stage of the proceeding, for good cause shown. The action may also be maintained by an organized bar association in this State. These remedies are in addition to, and not in substitution for, other available remedies.

(Source: P.A. 84-322.)

(5 ILCS 312/7-110)

Sec. 7-110. Applicable law; conflict of law.

(a) The validity of any notarization, including an electronic notarization, shall be determined by applying the laws of this State, regardless of the physical location of the principal at the time of a remote notarization.

(b) An electronic notary public authorized to perform electronic notarizations is subject to and must comply with this Act.

(c) If a conflict between a provision of this Section and another law of this State, this Section controls.

(Source: P.A. 102-160, eff. 6-5-23 (See Section 91 of P.A. 103-562 for effective date of P.A. 102-160).)

(5 ILCS 312/Art. VIII heading) ARTICLE VIII. REPEALER AND EFFECTIVE DATE

(5 ILCS 312/8-101) (from Ch. 102, par. 208-101)

Sec. 8-101. Section 2 of "An Act to increase the fee for issuing commissions to notaries public", approved June 3, 1897, as amended, is repealed.

(Source: P.A. 84-322.)

(5 ILCS 312/8-102) (from Ch. 102, par. 208-102)

Sec. 8-102. Section 28 of "An Act concerning fees and salaries, and to classify the several counties of this State with reference thereto", approved March 29, 1872, as amended, is repealed.

(Source: P.A. 84-322.)

(5 ILCS 312/8-103) (from Ch. 102, par. 208-103)

Sec. 8-103. "An Act to provide for the appointment, qualification and duties of notaries public and certifying their official acts and to provide for fines and penalties for the violation thereof", approved April 5, 1872, as amended, is repealed.

(Source: P.A. 84-322.)

(5 ILCS 312/8-104) (from Ch. 102, par. 208-104)

Sec. 8-104. This Act takes effect July 1, 1986.

(Source: P.A. 84-322.)