Full Text of HB4648 99th General Assembly
HB4648eng 99TH GENERAL ASSEMBLY |
| | HB4648 Engrossed | | LRB099 17036 HEP 41390 b |
|
| 1 | | AN ACT concerning digital assets.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 1. Short title. This Act may be cited as the | 5 | | Revised Uniform Fiduciary Access to Digital Assets Act (2015). | 6 | | Section 2. Definitions. In this Act: | 7 | | (1) "Account" means an arrangement under a | 8 | | terms-of-service agreement in which a custodian carries, | 9 | | maintains, processes, receives, or stores a digital asset of | 10 | | the user or provides goods or services to the user. | 11 | | (2) "Agent" means an attorney-in-fact granted authority | 12 | | under a durable or nondurable power of attorney. | 13 | | (3) "Carries" means engages in the transmission of an | 14 | | electronic communication. | 15 | | (4) "Catalogue of electronic communications" means | 16 | | information that identifies each person with which a user has | 17 | | had an electronic communication, the time and date of the | 18 | | communication, and the electronic address of the person. | 19 | | (5) "Guardian" means a person appointed by a court to | 20 | | manage the estate of a living individual. The term includes a | 21 | | standby or temporary guardian. | 22 | | (6) "Content of an electronic communication" means | 23 | | information concerning the substance or meaning of the |
| | | HB4648 Engrossed | - 2 - | LRB099 17036 HEP 41390 b |
|
| 1 | | communication which: | 2 | | (A) has been sent or received by a user; | 3 | | (B) is in electronic storage by a custodian providing | 4 | | an electronic-communication service to the public or is | 5 | | carried or maintained by a custodian providing a | 6 | | remote-computing service to the public; and | 7 | | (C) is not readily accessible to the public. | 8 | | (7) "Court" means a court of competent jurisdiction. | 9 | | (8) "Custodian" means a person that carries, maintains, | 10 | | processes, receives, or stores a digital asset of a user. | 11 | | (9) "Designated recipient" means a person chosen by a user | 12 | | using an online tool to administer digital assets of the user. | 13 | | (10) "Digital asset" means an electronic record in which an | 14 | | individual has a right or interest. The term does not include | 15 | | an underlying asset or liability unless the asset or liability | 16 | | is itself an electronic record. | 17 | | (11) "Electronic" means relating to technology having | 18 | | electrical, digital, magnetic, wireless, optical, | 19 | | electromagnetic, or similar capabilities. | 20 | | (12) "Electronic communication" has the meaning set forth | 21 | | in 18 U.S.C. Section 2510(12), as amended. | 22 | | (13) "Electronic communication service" means a custodian | 23 | | that provides to a user the ability to send or receive an | 24 | | electronic communication. | 25 | | (14) "Fiduciary" means an original, additional, or | 26 | | successor personal representative, guardian, agent, or |
| | | HB4648 Engrossed | - 3 - | LRB099 17036 HEP 41390 b |
|
| 1 | | trustee. | 2 | | (15) "Information" means data, text, images, videos, | 3 | | sounds, codes, computer programs, software, databases, or the | 4 | | like. | 5 | | (16) "Online tool" means an electronic service provided by | 6 | | a custodian that allows a user in an agreement distinct from | 7 | | the terms-of-service agreement between the custodian and user, | 8 | | to provide directions for disclosure or nondisclosure of | 9 | | digital assets to a third person. | 10 | | (17) "Person" means an individual, estate, business or | 11 | | nonprofit entity, public corporation, government or | 12 | | governmental subdivision, agency, or instrumentality, or other | 13 | | legal entity. | 14 | | (18) "Personal representative" means an executor, | 15 | | administrator, special administrator, or person that performs | 16 | | substantially the same function under law of this state other | 17 | | than this Act. | 18 | | (19) "Power of attorney" means a record that grants an | 19 | | agent authority to act in the place of a principal. | 20 | | (20) "Principal" means an individual who grants authority | 21 | | to an agent in a power of attorney. | 22 | | (21) "Person with a disability" means an individual for | 23 | | whom a guardian has been appointed. The term includes an | 24 | | individual for whom an application for the appointment of a | 25 | | guardian is pending. | 26 | | (22) "Record" means information that is inscribed on a |
| | | HB4648 Engrossed | - 4 - | LRB099 17036 HEP 41390 b |
|
| 1 | | tangible medium or that is stored in an electronic or other | 2 | | medium and is retrievable in perceivable form. | 3 | | (23) "Remote-computing service" means a custodian that | 4 | | provides to a user computer-processing services or the storage | 5 | | of digital assets by means of an electronic communications | 6 | | system, as defined in 18 U.S.C. Section 2510(14), as amended. | 7 | | (24) "Terms-of-service agreement" means an agreement that | 8 | | controls the relationship between a user and a custodian. | 9 | | (25) "Trustee" means a fiduciary with legal title to | 10 | | property under an agreement or declaration that creates a | 11 | | beneficial interest in another. The term includes a successor | 12 | | trustee. | 13 | | (26) "User" means a person that has an account with a | 14 | | custodian. | 15 | | (27) "Will" includes a codicil, testamentary instrument | 16 | | that only appoints an executor, and instrument that revokes or | 17 | | revises a testamentary instrument. | 18 | | Section 3. Applicability. | 19 | | (a) This Act applies to: | 20 | | (1) a fiduciary acting under a will or power of | 21 | | attorney executed before, on, or after the effective date | 22 | | of this Act; | 23 | | (2) a personal representative acting for a decedent who | 24 | | died before, on, or after the effective date of this Act; | 25 | | (3) a guardianship proceeding commenced before, on, or |
| | | HB4648 Engrossed | - 5 - | LRB099 17036 HEP 41390 b |
|
| 1 | | after the effective date of this Act; and | 2 | | (4) a trustee acting under a trust created before, on, | 3 | | or after the effective date of this Act. | 4 | | (b) This Act applies to a custodian if the user resides in | 5 | | this state or resided in this state at the time of the user's | 6 | | death. | 7 | | (c) This Act does not apply to a digital asset of an | 8 | | employer used by an employee in the ordinary course of the | 9 | | employer's business. | 10 | | Section 4. User direction for disclosure of digital assets. | 11 | | (a) A user may use an online tool to direct the custodian | 12 | | to disclose to a designated recipient or not to disclose some | 13 | | or all of the user's digital assets, including the content of | 14 | | electronic communications. If the online tool allows the user | 15 | | to modify or delete a direction at all times, a direction | 16 | | regarding disclosure using an online tool overrides a contrary | 17 | | direction by the user in a will, trust, power of attorney, or | 18 | | other record. | 19 | | (b) If a user has not used an online tool to give direction | 20 | | under subsection (a) or if the custodian has not provided an | 21 | | online tool, the user may allow or prohibit in a will, trust, | 22 | | power of attorney, or other record, disclosure to a fiduciary | 23 | | of some or all of the user's digital assets, including the | 24 | | content of electronic communications sent or received by the | 25 | | user. |
| | | HB4648 Engrossed | - 6 - | LRB099 17036 HEP 41390 b |
|
| 1 | | (c) A user's direction under subsection (a) or (b) | 2 | | overrides a contrary provision in a terms-of-service agreement | 3 | | that does not require the user to act affirmatively and | 4 | | distinctly from the user's assent to the terms of service. | 5 | | Section 5. Terms-of-service agreement. | 6 | | (a) This Act does not change or impair a right of a | 7 | | custodian or a user under a terms-of-service agreement to | 8 | | access and use digital assets of the user. | 9 | | (b) This Act does not give a fiduciary or designated | 10 | | recipient any new or expanded rights other than those held by | 11 | | the user for whom, or for whose estate, the fiduciary or | 12 | | designated recipient acts or represents. | 13 | | (c) A fiduciary's or designated recipient's access to | 14 | | digital assets may be modified or eliminated by a user, by | 15 | | federal law, or by a terms-of-service agreement if the user has | 16 | | not provided direction under Section 4. | 17 | | Section 6. Procedure for disclosing digital assets. | 18 | | (a) When disclosing digital assets of a user under this | 19 | | Act, the custodian may at its sole discretion: | 20 | | (1) grant a fiduciary or designated recipient full | 21 | | access to the user's account; | 22 | | (2) grant a fiduciary or designated recipient partial | 23 | | access to the user's account sufficient to perform the | 24 | | tasks with which the fiduciary or designated recipient is |
| | | HB4648 Engrossed | - 7 - | LRB099 17036 HEP 41390 b |
|
| 1 | | charged; or | 2 | | (3) provide a fiduciary or designated recipient a copy | 3 | | in a record of any digital asset that, on the date the | 4 | | custodian received the request for disclosure, the user | 5 | | could have accessed if the user were alive and had full | 6 | | capacity and access to the account. | 7 | | (b) A custodian may assess a reasonable administrative | 8 | | charge for the cost of disclosing digital assets under this | 9 | | Act. | 10 | | (c) A custodian need not disclose under this Act a digital | 11 | | asset deleted by a user. | 12 | | (d) If a user directs or a fiduciary requests a custodian | 13 | | to disclose under this Act some, but not all, of the user's | 14 | | digital assets, the custodian need not disclose the assets if | 15 | | segregation of the assets would impose an undue burden on the | 16 | | custodian. If the custodian believes the direction or request | 17 | | imposes an undue burden, the custodian or fiduciary may seek an | 18 | | order from the court to disclose: | 19 | | (1) a subset limited by date of the user's digital | 20 | | assets; | 21 | | (2) all of the user's digital assets to the fiduciary | 22 | | or designated recipient; | 23 | | (3) none of the user's digital assets; or | 24 | | (4) all of the user's digital assets to the court for | 25 | | review in camera. |
| | | HB4648 Engrossed | - 8 - | LRB099 17036 HEP 41390 b |
|
| 1 | | Section 7. Disclosure of content of electronic | 2 | | communications of deceased user. If a deceased user consented | 3 | | or a court directs disclosure of the contents of electronic | 4 | | communications of the user, the custodian shall disclose to the | 5 | | personal representative of the estate of the user the content | 6 | | of an electronic communication sent or received by the user if | 7 | | the representative gives the custodian: | 8 | | (1) a written request for disclosure in physical or | 9 | | electronic form; | 10 | | (2) a certified copy of the death certificate of the | 11 | | user; | 12 | | (3) a certified copy of the letter of appointment of | 13 | | the representative or a court order; | 14 | | (4) unless the user provided direction using an online | 15 | | tool, a copy of the user's will, trust, power of attorney, | 16 | | or other record evidencing the user's consent to disclosure | 17 | | of the content of electronic communications; and | 18 | | (5) if requested by the custodian: | 19 | | (A) a number, username, address, or other unique | 20 | | subscriber or account identifier assigned by the | 21 | | custodian to identify the user's account; | 22 | | (B) evidence linking the account to the user; or | 23 | | (C) a finding by the court that: | 24 | | (i) the user had a specific account with the | 25 | | custodian, identifiable by the information | 26 | | specified in subparagraph (A); |
| | | HB4648 Engrossed | - 9 - | LRB099 17036 HEP 41390 b |
|
| 1 | | (ii) disclosure of the content of electronic | 2 | | communications of the user would not violate 18 | 3 | | U.S.C. Section 2701 et seq., as amended, 47 U.S.C. | 4 | | Section 222, as amended, or other applicable law; | 5 | | (iii) unless the user provided direction using | 6 | | an online tool, the user consented to disclosure of | 7 | | the content of electronic communications; or | 8 | | (iv) disclosure of the content of electronic | 9 | | communications of the user is permitted under this | 10 | | Act and reasonably necessary for administration of | 11 | | the estate. | 12 | | Section 8. Disclosure of other digital assets of deceased | 13 | | user. Unless the user prohibited disclosure of digital assets | 14 | | or the court directs otherwise, a custodian shall disclose to | 15 | | the personal representative of the estate of a deceased user a | 16 | | catalogue of electronic communications sent or received by the | 17 | | user and digital assets, other than the content of electronic | 18 | | communications, of the user, if the representative gives the | 19 | | custodian: | 20 | | (1) a written request for disclosure in physical or | 21 | | electronic form; | 22 | | (2) a certified copy of the death certificate of the | 23 | | user; | 24 | | (3) a certified copy of the letter of appointment of | 25 | | the representative or a court order; and |
| | | HB4648 Engrossed | - 10 - | LRB099 17036 HEP 41390 b |
|
| 1 | | (4) if requested by the custodian: | 2 | | (A) a number, username, address, or other unique | 3 | | subscriber or account identifier assigned by the | 4 | | custodian to identify the user's account; | 5 | | (B) evidence linking the account to the user; | 6 | | (C) an affidavit stating that disclosure of the | 7 | | user's digital assets is reasonably necessary for | 8 | | administration of the estate; or | 9 | | (D) a finding by the court that: | 10 | | (i) (blank); | 11 | | (ii) disclosure of the user's digital assets | 12 | | is permitted under this Act and reasonably | 13 | | necessary for administration of the estate. | 14 | | Section 9. Disclosure of content of electronic | 15 | | communications of principal. To the extent a power of attorney | 16 | | expressly grants an agent authority over the content of | 17 | | electronic communications sent or received by the principal and | 18 | | unless directed otherwise by the principal or the court, a | 19 | | custodian shall disclose to the agent the content if the agent | 20 | | gives the custodian: | 21 | | (1) a written request for disclosure in physical or | 22 | | electronic form; | 23 | | (2) an original or copy of the power of attorney | 24 | | expressly granting the agent authority over the content of | 25 | | electronic communications of the principal; |
| | | HB4648 Engrossed | - 11 - | LRB099 17036 HEP 41390 b |
|
| 1 | | (3) a certification by the agent, under penalty of | 2 | | perjury, that the power of attorney is in effect; and | 3 | | (4) if requested by the custodian: | 4 | | (A) a number, username, address, or other unique | 5 | | subscriber or account identifier assigned by the | 6 | | custodian to identify the principal's account; or | 7 | | (B) evidence linking the account to the principal. | 8 | | Section 10. Disclosure of other digital assets of | 9 | | principal. Unless otherwise ordered by the court, directed by | 10 | | the principal, or provided by a power of attorney, a custodian | 11 | | shall disclose to an agent with specific authority over digital | 12 | | assets or general authority to act on behalf of a principal a | 13 | | catalogue of electronic communications sent or received by the | 14 | | principal and digital assets, other than the content of | 15 | | electronic communications, of the principal if the agent gives | 16 | | the custodian: | 17 | | (1) a written request for disclosure in physical or | 18 | | electronic form; | 19 | | (2) an original or a copy of the power of attorney that | 20 | | gives the agent specific authority over digital assets or | 21 | | general authority to act on behalf of the principal; | 22 | | (3) a certification by the agent, under penalty of | 23 | | perjury, that the power of attorney is in effect; and | 24 | | (4) if requested by the custodian: | 25 | | (A) a number, username, address, or other unique |
| | | HB4648 Engrossed | - 12 - | LRB099 17036 HEP 41390 b |
|
| 1 | | subscriber or account identifier assigned by the | 2 | | custodian to identify the principal's account; or | 3 | | (B) evidence linking the account to the principal. | 4 | | Section 11. Disclosure of digital assets held in trust when | 5 | | trustee is original user. Unless otherwise ordered by the court | 6 | | or provided in a trust, a custodian shall disclose to a trustee | 7 | | that is an original user of an account any digital asset of the | 8 | | account held in trust, including a catalogue of electronic | 9 | | communications of the trustee and the content of electronic | 10 | | communications. | 11 | | Section 12. Disclosure of contents of electronic | 12 | | communications held in trust when trustee not original user. | 13 | | Unless otherwise ordered by the court, directed by the user, or | 14 | | provided in a trust, a custodian shall disclose to a trustee | 15 | | that is not an original user of an account the content of an | 16 | | electronic communication sent or received by an original or | 17 | | successor user and carried, maintained, processed, received, | 18 | | or stored by the custodian in the account of the trust if the | 19 | | trustee gives the custodian: | 20 | | (1) a written request for disclosure in physical or | 21 | | electronic form; | 22 | | (2) a certified copy of the trust instrument that | 23 | | includes consent to disclosure of the content of electronic | 24 | | communications to the trustee; |
| | | HB4648 Engrossed | - 13 - | LRB099 17036 HEP 41390 b |
|
| 1 | | (3) a certification by the trustee, under penalty of | 2 | | perjury, that the trust exists and the trustee is a | 3 | | currently acting trustee of the trust; and | 4 | | (4) if requested by the custodian: | 5 | | (A) a number, username, address, or other unique | 6 | | subscriber or account identifier assigned by the | 7 | | custodian to identify the trust's account; or | 8 | | (B) evidence linking the account to the trust. | 9 | | Section 13. Disclosure of other digital assets held in | 10 | | trust when trustee not original user. Unless otherwise ordered | 11 | | by the court, directed by the user, or provided in a trust, a | 12 | | custodian shall disclose, to a trustee that is not an original | 13 | | user of an account, a catalogue of electronic communications | 14 | | sent or received by an original or successor user and stored, | 15 | | carried, or maintained by the custodian in an account of the | 16 | | trust and any digital assets, other than the content of | 17 | | electronic communications, in which the trust has a right or | 18 | | interest if the trustee gives the custodian: | 19 | | (1) a written request for disclosure in physical or | 20 | | electronic form; | 21 | | (2) a certified copy of the trust instrument; | 22 | | (3) a certification by the trustee, under penalty of | 23 | | perjury, that the trust exists and the trustee is a | 24 | | currently acting trustee of the trust; and | 25 | | (4) if requested by the custodian: |
| | | HB4648 Engrossed | - 14 - | LRB099 17036 HEP 41390 b |
|
| 1 | | (A) a number, username, address, or other unique | 2 | | subscriber or account identifier assigned by the | 3 | | custodian to identify the trust's account; or | 4 | | (B) evidence linking the account to the trust. | 5 | | Section 14. Disclosure of contents of electronic | 6 | | communications and digital assets to guardian of person with a | 7 | | disability. (a) After an opportunity for a hearing under | 8 | | Article XIa of the Probate Act of 1975, the court may direct | 9 | | the disclosure of the digital assets of a person with a | 10 | | disability to his or her guardian. | 11 | | (b) Unless otherwise ordered by the court or directed by | 12 | | the user, a custodian shall disclose to a guardian the | 13 | | catalogue of electronic communications sent or received by a | 14 | | person with a disability and any digital assets, other than the | 15 | | content of electronic communications, in which the person with | 16 | | a disability has a right or interest if the guardian gives the | 17 | | custodian: | 18 | | (1) a written request for disclosure in physical or | 19 | | electronic form; | 20 | | (2) a certified copy of the court order that gives the | 21 | | guardian authority over the digital assets of the person | 22 | | with a disability; and | 23 | | (3) if requested by the custodian: | 24 | | (A) a number, username, address, or other unique | 25 | | subscriber or account identifier assigned by the |
| | | HB4648 Engrossed | - 15 - | LRB099 17036 HEP 41390 b |
|
| 1 | | custodian to identify the account of the person with a | 2 | | disability; or | 3 | | (B) evidence linking the account to the person with | 4 | | a disability. | 5 | | (c) A guardian with general authority to manage the assets | 6 | | of a person with a disability may request a custodian of the | 7 | | digital assets of the person with a disability to suspend or | 8 | | terminate an account of the person with a disability for good | 9 | | cause. A request made under this Section must be accompanied by | 10 | | a certified copy of the court order giving the guardian | 11 | | authority over the protected person's property. | 12 | | Section 15. Fiduciary duty and authority. | 13 | | (a) (Blank). | 14 | | (b) A fiduciary's or designated recipient's authority with | 15 | | respect to a digital asset of a user: | 16 | | (1) except as otherwise provided in Section 4, is | 17 | | subject to the applicable terms of service; | 18 | | (2) is subject to other applicable law, including | 19 | | copyright law; | 20 | | (3) in the case of a fiduciary, is limited by the scope | 21 | | of the fiduciary's duties under Illinois law; and | 22 | | (4) may not be used to impersonate the user. | 23 | | (c) A fiduciary with authority over the property of a | 24 | | decedent, person with a disability, principal, or settlor has | 25 | | the right to access any digital asset in which the decedent, |
| | | HB4648 Engrossed | - 16 - | LRB099 17036 HEP 41390 b |
|
| 1 | | person with a disability, principal, or settlor had a right or | 2 | | interest and that is not held by a custodian or subject to a | 3 | | terms-of-service agreement. | 4 | | (d) A fiduciary acting within the scope of the fiduciary's | 5 | | duties is an authorized user of the property of the decedent, | 6 | | person with a disability, principal, or settlor for the purpose | 7 | | of applicable computer-fraud and unauthorized-computer-access | 8 | | laws, including Subdivision 30 of Article 17 of the Criminal | 9 | | Code of 2012, and may challenge the validity of an online tool | 10 | | in court when requesting an order directing compliance with | 11 | | this Act. | 12 | | (e) A fiduciary with authority over the tangible, personal | 13 | | property of a decedent, person with a disability, principal, or | 14 | | settlor: | 15 | | (1) has the right to access the property and any | 16 | | digital asset stored in it; and | 17 | | (2) is an authorized user for the purpose of | 18 | | computer-fraud and unauthorized-computer-access laws, | 19 | | including Subdivision 30 of Article 17 of the Criminal Code | 20 | | of 2012. | 21 | | (f) A custodian may disclose information in an account to a | 22 | | fiduciary of the user when the information is required to | 23 | | terminate an account used to access digital assets licensed to | 24 | | the user. | 25 | | (g) A fiduciary of a user may request a custodian to | 26 | | terminate the user's account. A request for termination must be |
| | | HB4648 Engrossed | - 17 - | LRB099 17036 HEP 41390 b |
|
| 1 | | in writing, in either physical or electronic form, and | 2 | | accompanied by: | 3 | | (1) if the user is deceased, a certified copy of the | 4 | | death certificate of the user; | 5 | | (2) a certified copy of the letter of appointment of | 6 | | the representative or a small-estate affidavit or court | 7 | | order, court order, power of attorney, or trust giving the | 8 | | fiduciary authority over the account; and | 9 | | (3) if requested by the custodian: | 10 | | (A) a number, username, address, or other unique | 11 | | subscriber or account identifier assigned by the | 12 | | custodian to identify the user's account; | 13 | | (B) evidence linking the account to the user; or | 14 | | (C) a finding by the court that the user had a | 15 | | specific account with the custodian, identifiable by | 16 | | the information specified in subparagraph (A). | 17 | | Section 16. Custodian compliance and immunity. | 18 | | (a) Not later than 60 days after receipt of the information | 19 | | required under Sections 7 through 15, a custodian shall comply | 20 | | with a request under this Act from a fiduciary or designated | 21 | | recipient to disclose digital assets or terminate an account. | 22 | | If the custodian fails to comply, the fiduciary or designated | 23 | | recipient may apply to the court for an order directing | 24 | | compliance. | 25 | | (b) An order under subsection (a) directing compliance must |
| | | HB4648 Engrossed | - 18 - | LRB099 17036 HEP 41390 b |
|
| 1 | | contain a finding that compliance is not in violation of 18 | 2 | | U.S.C. Section 2702, as amended. | 3 | | (c) A custodian may notify the user that a request for | 4 | | disclosure or to terminate an account was made under this Act. | 5 | | (d) A custodian may deny a request under this Act from a | 6 | | fiduciary or designated recipient for disclosure of digital | 7 | | assets or to terminate an account if the custodian is aware of | 8 | | any lawful access to the account following the receipt of the | 9 | | fiduciary's request. | 10 | | (e) This Act does not limit a custodian's ability to obtain | 11 | | or require a fiduciary or designated recipient requesting | 12 | | disclosure or termination under this Act to obtain a court | 13 | | order which: | 14 | | (1) specifies that an account belongs to the person | 15 | | with a disability or principal; | 16 | | (2) specifies that there is sufficient consent from the | 17 | | person with a disability or principal to support the | 18 | | requested disclosure; and | 19 | | (3) contains a finding required by law other than this | 20 | | Act. | 21 | | (f) A custodian and its officers, employees, and agents are | 22 | | immune from liability for an act or omission done in good | 23 | | faith, except for willful and wanton misconduct, in compliance | 24 | | with this Act. | 25 | | Section 17. (Blank). |
| | | HB4648 Engrossed | - 19 - | LRB099 17036 HEP 41390 b |
|
| 1 | | Section 18. Relation to Electronic Signatures in Global and | 2 | | National Commerce Act. This Act modifies, limits, or supersedes | 3 | | the Electronic Signatures in Global and National Commerce Act, | 4 | | 15 U.S.C. Section 7001 et seq., but does not modify, limit, or | 5 | | supersede Section 101(c) of that Act, 15 U.S.C. Section | 6 | | 7001(c), or authorize electronic delivery of any of the notices | 7 | | described in Section 103(b) of that Act, 15 U.S.C. Section | 8 | | 7003(b). | 9 | | Section 19. Severability. If any provision of this Act or | 10 | | its application to any person or circumstance is held invalid, | 11 | | the invalidity does not affect other provisions or applications | 12 | | of this Act which can be given effect without the invalid | 13 | | provision or application, and to this end the provisions of | 14 | | this Act are severable.
| 15 | | Section 20. The Criminal Code of 2012 is amended by | 16 | | changing Sections 17-51 and 17-54 as follows:
| 17 | | (720 ILCS 5/17-51) (was 720 ILCS 5/16D-3)
| 18 | | Sec. 17-51. Computer tampering.
| 19 | | (a) A person commits
computer tampering when he or she | 20 | | knowingly and without the authorization of a
computer's owner | 21 | | or in excess of
the authority granted to him or her:
| 22 | | (1) Accesses or causes to be accessed a computer or any |
| | | HB4648 Engrossed | - 20 - | LRB099 17036 HEP 41390 b |
|
| 1 | | part thereof, a computer network, or
a program or data;
| 2 | | (2) Accesses or causes to be accessed a computer or any | 3 | | part thereof, a computer network, or
a program or data, and | 4 | | obtains data or services;
| 5 | | (3) Accesses or causes to be accessed a computer or any
| 6 | | part thereof, a computer network, or a program or data, and | 7 | | damages or destroys the computer or
alters, deletes, or | 8 | | removes a computer program or data;
| 9 | | (4) Inserts or attempts to insert a program into a | 10 | | computer or
computer program knowing or having reason to | 11 | | know that such program contains
information or commands | 12 | | that will or may: | 13 | | (A) damage or destroy that computer,
or any other | 14 | | computer subsequently accessing or being accessed by | 15 | | that
computer; | 16 | | (B) alter, delete, or remove a computer program or
| 17 | | data from that computer, or any other computer program | 18 | | or data in a
computer subsequently accessing or being | 19 | | accessed by that computer; or | 20 | | (C) cause loss to the users of that computer or the | 21 | | users of a
computer which accesses or which is accessed | 22 | | by such program; or
| 23 | | (5) Falsifies or forges electronic mail transmission | 24 | | information or
other
routing information in any manner in | 25 | | connection with the transmission of
unsolicited bulk | 26 | | electronic mail through or into the computer network of an
|
| | | HB4648 Engrossed | - 21 - | LRB099 17036 HEP 41390 b |
|
| 1 | | electronic mail service provider or its subscribers.
| 2 | | (a-5) Distributing software to falsify routing | 3 | | information. It is unlawful for any person knowingly to sell, | 4 | | give, or
otherwise
distribute or possess with the intent to | 5 | | sell, give, or distribute software
which:
| 6 | | (1) is primarily designed or produced for the purpose | 7 | | of facilitating or
enabling the falsification of | 8 | | electronic mail transmission information or
other routing | 9 | | information; | 10 | | (2) has only a limited commercially significant
| 11 | | purpose or use other than to facilitate or enable the | 12 | | falsification of
electronic
mail transmission information | 13 | | or other routing information; or | 14 | | (3) is
marketed by that person or another acting in | 15 | | concert with that person with
that person's knowledge for | 16 | | use in facilitating or enabling the falsification
of
| 17 | | electronic mail transmission information or other routing | 18 | | information.
| 19 | | (a-10) For purposes of subsection (a), accessing a computer | 20 | | network is deemed to be with the authorization of a
computer's | 21 | | owner if: | 22 | | (1) the owner authorizes patrons, customers, or guests | 23 | | to access the computer network and the person accessing the | 24 | | computer network is an authorized patron, customer, or | 25 | | guest and complies with all terms or conditions for use of | 26 | | the computer network that are imposed by the owner; or |
| | | HB4648 Engrossed | - 22 - | LRB099 17036 HEP 41390 b |
|
| 1 | | (2) the owner authorizes the public to access the | 2 | | computer network and the person accessing the computer | 3 | | network complies with all terms or conditions for use of | 4 | | the computer network that are imposed by the owner ; or . | 5 | | (3) The person accesses the computer network in | 6 | | compliance with the Revised Uniform Fiduciary Access to | 7 | | Digital Assets Act (2015).
| 8 | | (b) Sentence.
| 9 | | (1) A person who commits computer
tampering as set | 10 | | forth in subdivision (a)(1) or (a)(5) or subsection (a-5) | 11 | | of this
Section is guilty
of a Class B misdemeanor.
| 12 | | (2) A person who commits computer tampering as set | 13 | | forth
in subdivision (a)(2) of this Section is guilty of a | 14 | | Class A misdemeanor
and a Class 4 felony for the second or | 15 | | subsequent offense.
| 16 | | (3) A person who commits computer tampering as set | 17 | | forth
in subdivision (a)(3) or (a)(4) of this Section is | 18 | | guilty of a Class 4 felony
and a Class 3 felony for the | 19 | | second or subsequent offense.
| 20 | | (4) If an injury arises from the transmission of | 21 | | unsolicited bulk
electronic
mail, the injured person, | 22 | | other than an electronic mail service
provider, may also | 23 | | recover attorney's fees and costs, and may elect, in lieu | 24 | | of
actual damages, to recover the lesser of $10 for each | 25 | | unsolicited
bulk electronic mail message transmitted in | 26 | | violation of this Section, or
$25,000 per day. The injured |
| | | HB4648 Engrossed | - 23 - | LRB099 17036 HEP 41390 b |
|
| 1 | | person shall not have a cause of action
against the | 2 | | electronic mail service provider that merely transmits the
| 3 | | unsolicited bulk electronic mail over its computer | 4 | | network.
| 5 | | (5) If an injury arises from the transmission of | 6 | | unsolicited bulk
electronic
mail,
an injured electronic | 7 | | mail service provider may also recover
attorney's fees and | 8 | | costs, and may elect, in lieu of actual damages, to recover
| 9 | | the greater of $10 for each unsolicited electronic mail
| 10 | | advertisement transmitted in violation of this Section, or | 11 | | $25,000 per day.
| 12 | | (6) The provisions of this Section shall not be | 13 | | construed to limit any
person's
right to pursue any | 14 | | additional civil remedy otherwise allowed by law.
| 15 | | (c) Whoever suffers loss by reason of a violation of | 16 | | subdivision (a)(4)
of this Section may, in a civil action | 17 | | against the violator, obtain
appropriate relief. In
a civil | 18 | | action under this Section, the court may award to the | 19 | | prevailing
party reasonable attorney's fees and other | 20 | | litigation expenses.
| 21 | | (Source: P.A. 95-326, eff. 1-1-08; 96-1000, eff. 7-2-10; | 22 | | 96-1551, eff. 7-1-11 .)
| 23 | | (720 ILCS 5/17-54) (was 720 ILCS 5/16D-7)
| 24 | | Sec. 17-54. Evidence of lack of authority. For the purposes | 25 | | of Sections 17-50 through 17-52, the trier of fact may infer |
| | | HB4648 Engrossed | - 24 - | LRB099 17036 HEP 41390 b |
|
| 1 | | that a person accessed a computer without the authorization of | 2 | | its owner or in excess of the authority granted if the person | 3 | | accesses or causes to be accessed a computer, which access
| 4 | | requires a confidential or proprietary code which has not been | 5 | | issued to or
authorized for use by that person. This Section | 6 | | does not apply to a person who acquires access in compliance | 7 | | with the Revised Uniform Fiduciary Access to Digital Assets Act | 8 | | (2015).
| 9 | | (Source: P.A. 96-1551, eff. 7-1-11 .)
| 10 | | Section 21. Effective date. This Act takes effect upon | 11 | | becoming law.
|
|