Full Text of SB1376 99th General Assembly
SB1376eng 99TH GENERAL ASSEMBLY |
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| 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 | | Uniform Fiduciary Access to Digital Assets Act. | 6 | | Section 2. Definitions. In this Act:
| 7 | | (1) "Account holder" means a person that has entered | 8 | | into a terms-of-service agreement with a custodian or a | 9 | | fiduciary for the person.
| 10 | | (2) "Agent" means an attorney in fact granted authority | 11 | | under a durable or nondurable power of attorney.
| 12 | | (3) "Carries" means engages in the transmission of | 13 | | electronic communications.
| 14 | | (4) "Catalogue of electronic communications" means | 15 | | information that identifies each person with which an | 16 | | account holder has had an electronic communication, the | 17 | | time and date of the communication, and the electronic | 18 | | 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 | 21 | | a standby or temporary guardian.
| 22 | | (6) "Content of an electronic communication" means | 23 | | information concerning the substance or meaning of the |
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| 1 | | communication which: | 2 | | (A) has been sent or received by an account holder;
| 3 | | (B) is in electronic storage by a custodian | 4 | | providing an electronic-communication service to the | 5 | | public or is carried or maintained by a custodian | 6 | | providing a 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, | 10 | | maintains, processes, receives, or stores a digital asset | 11 | | of an account holder.
| 12 | | (9) "Digital asset" means a record that is electronic. | 13 | | The term does not include an underlying asset or liability | 14 | | unless the asset or liability is itself a record that is | 15 | | electronic.
| 16 | | (10) "Electronic" means relating to technology having | 17 | | electrical, digital, magnetic, wireless, optical, | 18 | | electromagnetic, or similar capabilities.
| 19 | | (11) "Electronic communication" has the same meaning | 20 | | as the definition in 18 U.S.C. Section 2510(12).
| 21 | | (12) "Electronic-communication service" means a | 22 | | custodian that provides to an account holder the ability to | 23 | | send or receive an electronic communication.
| 24 | | (13) "Fiduciary" means an original, additional, or | 25 | | successor personal representative, guardian, agent, or | 26 | | trustee.
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| 1 | | (14) "Information" means data, text, images, videos, | 2 | | sounds, codes, computer programs, software, databases, or | 3 | | the like.
| 4 | | (15) "Person" means an individual, estate, business or | 5 | | nonprofit entity, public corporation, government or | 6 | | governmental subdivision, agency, or instrumentality, or | 7 | | other legal entity.
| 8 | | (16) "Personal representative" means an executor, | 9 | | administrator, special administrator, or person that | 10 | | performs substantially the same function under law of this | 11 | | State other than this Act.
| 12 | | (17) "Power of attorney" means a record that grants an | 13 | | agent authority to act in the place of a principal.
| 14 | | (18) "Principal" means an individual who grants | 15 | | authority to an agent in a power of attorney.
| 16 | | (19) "Disabled person" means an individual for whom a | 17 | | guardian has been appointed. The term includes an | 18 | | individual for whom an application for the appointment of a | 19 | | guardian is pending.
| 20 | | (20) "Record" means information that is inscribed on a | 21 | | tangible medium or that is stored in an electronic or other | 22 | | medium and is retrievable in perceivable form.
| 23 | | (21) "Remote computing service" means a custodian that | 24 | | provides to an account holder computer processing services | 25 | | or the storage of digital assets by means of an electronic | 26 | | communications system, as defined in 18 U.S.C. Section |
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| 1 | | 2510(14).
| 2 | | (22) "Terms-of-service agreement" means an agreement | 3 | | that controls the relationship between an account holder | 4 | | and a custodian.
| 5 | | (23) "Trustee" means a fiduciary with legal title to | 6 | | property pursuant to an agreement or declaration that | 7 | | creates a beneficial interest in another. The term includes | 8 | | a successor trustee.
| 9 | | (24) "Will" includes a codicil, testamentary | 10 | | instrument that only appoints an executor, and instrument | 11 | | that revokes or revises a testamentary instrument.
| 12 | | Section 3. Applicability.
| 13 | | (a) This Act applies to:
| 14 | | (1) a fiduciary or agent acting under a will or power | 15 | | of attorney executed before, on, or after the effective | 16 | | date of this Act;
| 17 | | (2) a personal representative acting for a decedent who | 18 | | died before, on, or after the effective date of this Act;
| 19 | | (3) a guardianship proceeding, whether pending in a | 20 | | court or commenced before, on, or after the effective date | 21 | | of this Act; and
| 22 | | (4) a trustee acting under a trust created before, on, | 23 | | or after the effective date of this Act.
| 24 | | (b) This Act does not apply to a digital asset of an | 25 | | employer used by an employee in the ordinary course of the |
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| 1 | | employer's business.
| 2 | | Section 4. Access by personal representative to digital | 3 | | asset of decedent. Subject to Section 8(b) and unless otherwise | 4 | | ordered by the court or provided in the will of a decedent, the | 5 | | personal representative of the decedent has the right to | 6 | | access:
| 7 | | (1) the content of an electronic communication that the | 8 | | custodian is permitted to disclose under the Electronic | 9 | | Communications Privacy Act, 18 U.S.C. Section 2702(b);
| 10 | | (2) any catalogue of electronic communications sent or | 11 | | received by the decedent; and
| 12 | | (3) any other digital asset in which at death the | 13 | | decedent had a right or interest.
| 14 | | Section 5. Access by guardian to digital asset of disabled | 15 | | person. Subject to Section 8(b), the court, after an | 16 | | opportunity for hearing under Article XIa of the Probate Act of | 17 | | 1975, may grant a guardian the right to access:
| 18 | | (1) the content of an electronic communication that the | 19 | | custodian is permitted to disclose under the Electronic | 20 | | Communications Privacy Act, 18 U.S.C. Section 2702(b);
| 21 | | (2) any catalogue of electronic communications sent or | 22 | | received by the disabled person; and
| 23 | | (3) any other digital asset in which the disabled | 24 | | person has a right or interest.
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| 1 | | Section 6. Access by agent to digital asset of principal.
| 2 | | (a) To the extent a power of attorney expressly grants an | 3 | | agent authority over the content of an electronic communication | 4 | | of the principal and subject to Section 8(b), the agent has the | 5 | | right to access the content of an electronic communication that | 6 | | the custodian is permitted to disclose under the Electronic | 7 | | Communications Privacy Act, 18 U.S.C. Section 2702(b).
| 8 | | (b) Subject to Section 8(b) and unless otherwise ordered by | 9 | | the court or provided by a power of attorney, an agent has the | 10 | | right to access:
| 11 | | (1) any catalogue of electronic communications sent or | 12 | | received by the principal; and
| 13 | | (2) any other digital asset in which the principal has | 14 | | a right or interest.
| 15 | | Section 7. Access by trustee to digital asset.
| 16 | | (a) Subject to Section 8(b) and unless otherwise ordered by | 17 | | the court or provided in a trust, a trustee that is an original | 18 | | account holder has the right to access any digital asset held | 19 | | in trust, including any catalogue of electronic communications | 20 | | of the trustee and the content of an electronic communication.
| 21 | | (b) Subject to Section 8(b) and unless otherwise ordered by | 22 | | the court or provided in a trust, a trustee that is not an | 23 | | original account holder has the right to access:
| 24 | | (1) the content of an electronic communication that the |
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| 1 | | custodian is permitted to disclose under the Electronic | 2 | | Communications Privacy Act, 18 U.S.C. Section 2702(b);
| 3 | | (2) any catalogue of electronic communications sent or | 4 | | received by the original or any successor account holder; | 5 | | and
| 6 | | (3) any other digital asset in which the original or | 7 | | any successor account holder has a right or interest.
| 8 | | Section 8. Fiduciary authority.
| 9 | | (a) A fiduciary that is an account holder or has the right | 10 | | under this Act to access a digital asset of an account holder:
| 11 | | (1) subject to the terms-of-service agreement, | 12 | | copyright law, and other applicable law, may take any | 13 | | action concerning the asset to the extent of the account | 14 | | holder's authority and the fiduciary's power under the law | 15 | | of this State other than this Act;
| 16 | | (2) has, for the purpose of applicable electronic | 17 | | privacy laws, the lawful consent of the account holder for | 18 | | the custodian to divulge the content of an electronic | 19 | | communication to the fiduciary; and
| 20 | | (3) is, for the purpose of applicable computer-fraud | 21 | | and unauthorized-computer-access laws, including | 22 | | Subdivision 30 of the Criminal Code of 2012, an authorized | 23 | | user.
| 24 | | (b) Unless an account holder, after the effective date of | 25 | | this Act, agrees to a provision in a terms-of-service agreement |
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| 1 | | that limits a fiduciary's access to a digital asset of the | 2 | | account holder by an affirmative act separate from the account | 3 | | holder's assent to other provisions of the agreement:
| 4 | | (1) the provision is void as against the strong public | 5 | | policy of this State; and
| 6 | | (2) the fiduciary's access under this Act to a digital | 7 | | asset does not violate the terms-of-service agreement even | 8 | | if the agreement requires notice of a change in the account | 9 | | holder's status.
| 10 | | (c) A choice-of-law provision in a terms-of-service | 11 | | agreement is unenforceable against a fiduciary acting under | 12 | | this Act to the extent the provision designates law that | 13 | | enforces a limitation on a fiduciary's access to a digital | 14 | | asset, and the limitation is void under subsection (b).
| 15 | | (d) As to tangible personal property capable of receiving, | 16 | | storing, processing, or sending a digital asset, a fiduciary | 17 | | with authority over the property of a decedent, disabled | 18 | | person, principal, or settlor:
| 19 | | (1) has the right to access the property and any | 20 | | digital asset stored in it; and
| 21 | | (2) is an authorized user for purposes of any | 22 | | applicable computer-fraud and unauthorized-computer-access | 23 | | laws, including Subdivision 30 of the Criminal Code of | 24 | | 2012.
| 25 | | Section 9. Compliance.
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| 1 | | (a) If a fiduciary with a right under this Act to access a | 2 | | digital asset of an account holder complies with subsection | 3 | | (b), the custodian shall comply with the fiduciary's request in | 4 | | a record for:
| 5 | | (1) access to the asset;
| 6 | | (2) control of the asset; and
| 7 | | (3) a copy of the asset to the extent permitted by | 8 | | copyright law. | 9 | | (b) If a request under subsection (a) is made by:
| 10 | | (1) a personal representative with the right of access | 11 | | under Section 4, the request must be accompanied by a | 12 | | certified copy of the letters of office or letters of | 13 | | administration of the personal representative, a small | 14 | | estate affidavit, or court order;
| 15 | | (2) a guardian with the right of access under Section | 16 | | 5, the request must be accompanied by a certified copy of | 17 | | the court order that gives the guardian authority over the | 18 | | digital asset;
| 19 | | (3) an agent with the right of access under Section 6, | 20 | | the request must be accompanied by an original or a copy of | 21 | | the power of attorney that authorizes the agent to exercise | 22 | | authority over the digital asset and a certification of the | 23 | | agent, under penalty of perjury, that the power of attorney | 24 | | is in effect; and
| 25 | | (4) a trustee with the right of access under Section 7, | 26 | | the request must be accompanied by a certified copy of the |
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| 1 | | trust instrument that authorizes the trustee to exercise | 2 | | authority over the digital asset.
| 3 | | (c) A custodian shall comply with a request made under | 4 | | subsection (a) not later than 60 days after receipt. If the | 5 | | custodian fails to comply, the fiduciary may apply to the court | 6 | | for an order directing compliance.
| 7 | | (d) Instead of furnishing a copy of the trust instrument | 8 | | under subsection (b)(4), the trustee may provide a | 9 | | certification of trust. The certification:
| 10 | | (1) must contain the following information:
| 11 | | (A) that the trust exists and the date the trust | 12 | | instrument was executed;
| 13 | | (B) the identity of the settlor;
| 14 | | (C) the identity and address of the trustee;
| 15 | | (D) that there is nothing inconsistent in the trust | 16 | | with respect to the trustee's powers over digital | 17 | | assets;
| 18 | | (E) whether the trust is revocable and the identity | 19 | | of any person holding a power to revoke the trust;
| 20 | | (F) whether a cotrustee has authority to sign or | 21 | | otherwise authenticate; and
| 22 | | (G) whether all or fewer than all cotrustees are | 23 | | required to exercise powers of the trustee;
| 24 | | (2) must be signed or otherwise authenticated by a | 25 | | trustee;
| 26 | | (3) must state that the trust has not been revoked, |
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| 1 | | modified, or amended in a manner that would cause the | 2 | | representations contained in the certification of trust to | 3 | | be incorrect; and
| 4 | | (4) need not contain the dispositive terms of the | 5 | | trust.
| 6 | | (e) A custodian that receives a certification under | 7 | | subsection (d) may require the trustee to provide copies of | 8 | | excerpts from the original trust instrument and later | 9 | | amendments designating the trustee and conferring on the | 10 | | trustee the power to act in the pending transaction.
| 11 | | (f) A custodian that acts in reliance on a certification | 12 | | under subsection (d) without knowledge that the | 13 | | representations contained in it are incorrect is not liable to | 14 | | any person for so acting and may assume without inquiry the | 15 | | existence of facts stated in the certification.
| 16 | | (g) A person that in good faith enters into a transaction | 17 | | in reliance on a certification under subsection (d) may enforce | 18 | | the transaction against the trust property as if the | 19 | | representations contained in the certification were correct.
| 20 | | (h) A person that demands the trust instrument in addition | 21 | | to a certification under subsection (d) or excerpts under | 22 | | subsection (e) is liable for damages, including attorneys' | 23 | | fees, if
the court determines that the person did not act in | 24 | | good faith in demanding the instrument.
| 25 | | (i) This Section does not limit the right of a person to | 26 | | obtain a copy of a trust instrument in a judicial proceeding |
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| 1 | | concerning the trust.
| 2 | | Section 10. Custodian immunity. A custodian and its | 3 | | officers, employees, and agents are immune from liability for | 4 | | an act or omission done in good faith, except for willful and | 5 | | wanton misconduct, in compliance with this Act. | 6 | | Section 11. Uniformity of application and construction. In | 7 | | applying and construing this uniform Act, consideration must be | 8 | | given to the need to promote uniformity of the law with respect | 9 | | to its subject matter among states that enact it. | 10 | | Section 12. Relation to Electronic Signatures in Global and | 11 | | National Commerce Act. This Act modifies, limits, or supersedes | 12 | | the Electronic Signatures in Global and National Commerce Act, | 13 | | 15 U.S.C. Section 7001 et seq., but does not modify, limit, or | 14 | | supersede Section 101(c) of that Act, 15 U.S.C. Section | 15 | | 7001(c), or authorize electronic delivery of any of the notices | 16 | | described in Section 103(b) of that Act, 15 U.S.C. Section | 17 | | 7003(b). | 18 | | Section 12.1. Conflict with federal law. Nothing contained | 19 | | in this Act is intended to supersede applicable federal law | 20 | | including, but not limited to, the Electronic Communications | 21 | | Privacy Act. In the event any provision of this Act is | 22 | | inconsistent with applicable federal law, the federal law shall |
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| 1 | | prevail, but only to the extent of such inconsistency. | 2 | | Section 13. (Blank). | 3 | | Section 14. The Criminal Code of 2012 is amended by | 4 | | changing Sections 17-51 and 17-54 as follows:
| 5 | | (720 ILCS 5/17-51) (was 720 ILCS 5/16D-3)
| 6 | | Sec. 17-51. Computer tampering.
| 7 | | (a) A person commits
computer tampering when he or she | 8 | | knowingly and without the authorization of a
computer's owner | 9 | | or in excess of
the authority granted to him or her:
| 10 | | (1) Accesses or causes to be accessed a computer or any | 11 | | part thereof, a computer network, or
a program or data;
| 12 | | (2) Accesses or causes to be accessed a computer or any | 13 | | part thereof, a computer network, or
a program or data, and | 14 | | obtains data or services;
| 15 | | (3) Accesses or causes to be accessed a computer or any
| 16 | | part thereof, a computer network, or a program or data, and | 17 | | damages or destroys the computer or
alters, deletes, or | 18 | | removes a computer program or data;
| 19 | | (4) Inserts or attempts to insert a program into a | 20 | | computer or
computer program knowing or having reason to | 21 | | know that such program contains
information or commands | 22 | | that will or may: | 23 | | (A) damage or destroy that computer,
or any other |
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| 1 | | computer subsequently accessing or being accessed by | 2 | | that
computer; | 3 | | (B) alter, delete, or remove a computer program or
| 4 | | data from that computer, or any other computer program | 5 | | or data in a
computer subsequently accessing or being | 6 | | accessed by that computer; or | 7 | | (C) cause loss to the users of that computer or the | 8 | | users of a
computer which accesses or which is accessed | 9 | | by such program; or
| 10 | | (5) Falsifies or forges electronic mail transmission | 11 | | information or
other
routing information in any manner in | 12 | | connection with the transmission of
unsolicited bulk | 13 | | electronic mail through or into the computer network of an
| 14 | | electronic mail service provider or its subscribers.
| 15 | | (a-5) Distributing software to falsify routing | 16 | | information. It is unlawful for any person knowingly to sell, | 17 | | give, or
otherwise
distribute or possess with the intent to | 18 | | sell, give, or distribute software
which:
| 19 | | (1) is primarily designed or produced for the purpose | 20 | | of facilitating or
enabling the falsification of | 21 | | electronic mail transmission information or
other routing | 22 | | information; | 23 | | (2) has only a limited commercially significant
| 24 | | purpose or use other than to facilitate or enable the | 25 | | falsification of
electronic
mail transmission information | 26 | | or other routing information; or |
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| 1 | | (3) is
marketed by that person or another acting in | 2 | | concert with that person with
that person's knowledge for | 3 | | use in facilitating or enabling the falsification
of
| 4 | | electronic mail transmission information or other routing | 5 | | information.
| 6 | | (a-10) For purposes of subsection (a), accessing a computer | 7 | | network is deemed to be with the authorization of a
computer's | 8 | | owner if: | 9 | | (1) the owner authorizes patrons, customers, or guests | 10 | | to access the computer network and the person accessing the | 11 | | computer network is an authorized patron, customer, or | 12 | | guest and complies with all terms or conditions for use of | 13 | | the computer network that are imposed by the owner; or | 14 | | (2) the owner authorizes the public to access the | 15 | | computer network and the person accessing the computer | 16 | | network complies with all terms or conditions for use of | 17 | | the computer network that are imposed by the owner ; or . | 18 | | (3) The person accesses the computer network in | 19 | | compliance with the Uniform Fiduciary Access to Digital | 20 | | Assets Act.
| 21 | | (b) Sentence.
| 22 | | (1) A person who commits computer
tampering as set | 23 | | forth in subdivision (a)(1) or (a)(5) or subsection (a-5) | 24 | | of this
Section is guilty
of a Class B misdemeanor.
| 25 | | (2) A person who commits computer tampering as set | 26 | | forth
in subdivision (a)(2) of this Section is guilty of a |
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| 1 | | Class A misdemeanor
and a Class 4 felony for the second or | 2 | | subsequent offense.
| 3 | | (3) A person who commits computer tampering as set | 4 | | forth
in subdivision (a)(3) or (a)(4) of this Section is | 5 | | guilty of a Class 4 felony
and a Class 3 felony for the | 6 | | second or subsequent offense.
| 7 | | (4) If an injury arises from the transmission of | 8 | | unsolicited bulk
electronic
mail, the injured person, | 9 | | other than an electronic mail service
provider, may also | 10 | | recover attorney's fees and costs, and may elect, in lieu | 11 | | of
actual damages, to recover the lesser of $10 for each | 12 | | unsolicited
bulk electronic mail message transmitted in | 13 | | violation of this Section, or
$25,000 per day. The injured | 14 | | person shall not have a cause of action
against the | 15 | | electronic mail service provider that merely transmits the
| 16 | | unsolicited bulk electronic mail over its computer | 17 | | network.
| 18 | | (5) If an injury arises from the transmission of | 19 | | unsolicited bulk
electronic
mail,
an injured electronic | 20 | | mail service provider may also recover
attorney's fees and | 21 | | costs, and may elect, in lieu of actual damages, to recover
| 22 | | the greater of $10 for each unsolicited electronic mail
| 23 | | advertisement transmitted in violation of this Section, or | 24 | | $25,000 per day.
| 25 | | (6) The provisions of this Section shall not be | 26 | | construed to limit any
person's
right to pursue any |
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| 1 | | additional civil remedy otherwise allowed by law.
| 2 | | (c) Whoever suffers loss by reason of a violation of | 3 | | subdivision (a)(4)
of this Section may, in a civil action | 4 | | against the violator, obtain
appropriate relief. In
a civil | 5 | | action under this Section, the court may award to the | 6 | | prevailing
party reasonable attorney's fees and other | 7 | | litigation expenses.
| 8 | | (Source: P.A. 95-326, eff. 1-1-08; 96-1000, eff. 7-2-10; | 9 | | 96-1551, eff. 7-1-11 .)
| 10 | | (720 ILCS 5/17-54) (was 720 ILCS 5/16D-7)
| 11 | | Sec. 17-54. Evidence of lack of authority. For the purposes | 12 | | of Sections 17-50 through 17-52, the trier of fact may infer | 13 | | that a person accessed a computer without the authorization of | 14 | | its owner or in excess of the authority granted if the person | 15 | | accesses or causes to be accessed a computer, which access
| 16 | | requires a confidential or proprietary code which has not been | 17 | | issued to or
authorized for use by that person. This Section | 18 | | does not apply to a person who acquires access in compliance | 19 | | with the Uniform Fiduciary Access to Digital Assets Act.
| 20 | | (Source: P.A. 96-1551, eff. 7-1-11 .)
| 21 | | Section 15. (Blank).
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