Tennessee Adopts Provisions Regarding Online Notarizations

The Tennessee Department of State recently adopted emergency rules to implement the state’s Online Notary Public Act (Act).  These rules, among other things, establish the requirements for conducting online notarizations in Tennessee.  The emergency rules went into effect on April 15, 2019.

Some of the key provisions of these rules include the following:

• Provides that a person who has been previously commissioned as a notary by a county legislative body in Tennessee, and who meets the qualification requirements for commissioning as a notary, may apply for commissioning as an online notary;
• States that an online notary public may perform authorized notarial acts by means of an electronic interactive two way audio and video communication only when the online notary public is physically located within Tennessee, without regard to whether the principal is physically located in Tennessee at the time of the online notarization;
• Requires records of an online notarization to be retained, in a safe and secure manner, for 5 years following the date of the notarization;
• Specifies that an online notary public must complete and attach a unique electronic notarial certificate to all written notarial acts that identifies the principal, the date of notarization, the state and county in which the notarization was performed, that the notarial act was an online notarization, and the type of notarial act performed;
• Provides that an online notary public must require the principal to demonstrate, to the satisfaction of the online notary public, that such person is not under duress and is not otherwise being coerced to complete the transaction, in order to preserve the integrity, security, and authenticity of online notarizations;
• Requires an online notary to use the same unique electronic signature and seal for all online notarial acts performed by him or her;
• States that an online notary public must provide any necessary instruction or techniques supplied by a vendor that allows the online notary public’s electronic notarial certificate and seal to be read and authenticate; and
• Clarifies that identity proofing and credential analysis must be performed by a third party who has provided evidence to the online notary public of the ability to satisfy the requirements of the Act.