Public Act 099-0775
 
HB4648 EnrolledLRB099 17036 HEP 41390 b


  
    AN ACT concerning digital assets.
  
 
    Be it enacted by the People of the State of Illinois,
 
represented in the General Assembly:
  
 
 
    Section 1. Short title. This Act may be cited as the 
Revised Uniform Fiduciary Access to Digital Assets Act (2015).
 
    Section 2. Definitions. In this Act:
    (1) "Account" means an arrangement under a 
terms-of-service agreement in which a custodian carries, 
maintains, processes, receives, or stores a digital asset of 
the user or provides goods or services to the user.
    (2) "Agent" means an attorney-in-fact granted authority 
under a durable or nondurable power of attorney.
    (3) "Carries" means engages in the transmission of an 
electronic communication.
    (4) "Catalogue of electronic communications" means 
information that identifies each person with which a user has 
had an electronic communication, the time and date of the 
communication, and the electronic address of the person.
    (5) "Guardian" means a person appointed by a court to 
manage the estate of a living individual.  The term includes a 
standby or temporary guardian.
    (6) "Content of an electronic communication" means 
information concerning the substance or meaning of the 
communication which:
        (A) has been sent or received by a user;
        (B) is in electronic storage by a custodian providing 
    an electronic-communication service to the public or is 
    carried or maintained by a custodian providing a 
    remote-computing service to the public; and
        (C) is not readily accessible to the public.
    (7) "Court" means a court of competent jurisdiction.
    (8) "Custodian" means a person that carries, maintains, 
processes, receives, or stores a digital asset of a user.
    (9) "Designated recipient" means a person chosen by a user 
using an online tool to administer digital assets of the user.
    (10) "Digital asset" means an electronic record in which an 
individual has a right or interest.  The term does not include 
an underlying asset or liability unless the asset or liability 
is itself an electronic record.
    (11) "Electronic" means relating to technology having 
electrical, digital, magnetic, wireless, optical, 
electromagnetic, or similar capabilities.
    (12) "Electronic communication" has the meaning set forth 
in 18 U.S.C. Section 2510(12), as amended.
    (13) "Electronic communication service" means a custodian 
that provides to a user the ability to send or receive an 
electronic communication.
    (14) "Fiduciary" means an original, additional, or 
successor personal representative, guardian, agent, or 
trustee.
    (15) "Information" means data, text, images, videos, 
sounds, codes, computer programs, software, databases, or the 
like.
    (16) "Online tool" means an electronic service provided by 
a custodian that allows a user in an agreement distinct from 
the terms-of-service agreement between the custodian and user, 
to provide directions for disclosure or nondisclosure of 
digital assets to a third person.
    (17) "Person" means an individual, estate, business or 
nonprofit entity, public corporation, government or 
governmental subdivision, agency, or instrumentality, or other 
legal entity.
    (18) "Personal representative" means an executor, 
administrator, special administrator, or person that performs 
substantially the same function under law of this state other 
than this Act.
    (19) "Power of attorney" means a record that grants an 
agent authority to act in the place of a principal.
    (20) "Principal" means an individual who grants authority 
to an agent in a power of attorney.
    (21) "Person with a disability" means an individual for 
whom a guardian has been appointed.  The term includes an 
individual for whom an application for the appointment of a 
guardian is pending.
    (22) "Record" means information that is inscribed on a 
tangible medium or that is stored in an electronic or other 
medium and is retrievable in perceivable form.
    (23) "Remote-computing service" means a custodian that 
provides to a user computer-processing services or the storage 
of digital assets by means of an electronic communications 
system, as defined in 18 U.S.C. Section 2510(14), as amended.
    (24) "Terms-of-service agreement" means an agreement that 
controls the relationship between a user and a custodian.
    (25) "Trustee" means a fiduciary with legal title to 
property under an agreement or declaration that creates a 
beneficial interest in another.  The term includes a successor 
trustee.
    (26) "User" means a person that has an account with a 
custodian.
    (27) "Will" includes a codicil, testamentary instrument 
that only appoints an executor, and instrument that revokes or 
revises a testamentary instrument.
 
    Section 3. Applicability.
    (a) This Act applies to:
        (1) a fiduciary acting under a will or power of 
    attorney executed before, on, or after the effective date 
    of this Act;
        (2) a personal representative acting for a decedent who 
    died before, on, or after the effective date of this Act;
        (3) a guardianship proceeding commenced before, on, or 
    after the effective date of this Act; and
        (4) a trustee acting under a trust created before, on, 
    or after the effective date of this Act.
    (b) This Act applies to a custodian if the user resides in 
this state or resided in this state at the time of the user's 
death.
    (c) This Act does not apply to a digital asset of an 
employer used by an employee in the ordinary course of the 
employer's business.
 
    Section 4. User direction for disclosure of digital assets.
    (a) A user may use an online tool to direct the custodian 
to disclose to a designated recipient or not to disclose some 
or all of the user's digital assets, including the content of 
electronic communications.  If the online tool allows the user 
to modify or delete a direction at all times, a direction 
regarding disclosure using an online tool overrides a contrary 
direction by the user in a will, trust, power of attorney, or 
other record.
    (b) If a user has not used an online tool to give direction 
under subsection (a) or if the custodian has not provided an 
online tool, the user may allow or prohibit in a will, trust, 
power of attorney, or other record, disclosure to a fiduciary 
of some or all of the user's digital assets, including the 
content of electronic communications sent or received by the 
user.
    (c) A user's direction under subsection (a) or (b) 
overrides a contrary provision in a terms-of-service agreement 
that does not require the user to act affirmatively and 
distinctly from the user's assent to the terms of service.
 
    Section 5. Terms-of-service agreement.
    (a) This Act does not change or impair a right of a 
custodian or a user under a terms-of-service agreement to 
access and use digital assets of the user.
    (b) This Act does not give a fiduciary or designated 
recipient any new or expanded rights other than those held by 
the user for whom, or for whose estate, the fiduciary or 
designated recipient acts or represents.
    (c) A fiduciary's or designated recipient's access to 
digital assets may be modified or eliminated by a user, by 
federal law, or by a terms-of-service agreement if the user has 
not provided direction under Section 4.
 
    Section 6. Procedure for disclosing digital assets.
    (a)  When disclosing digital assets of a user under this 
Act, the custodian may at its sole discretion:
        (1) grant a fiduciary or designated recipient full 
    access to the user's account;
        (2) grant a fiduciary or designated recipient partial 
    access to the user's account sufficient to perform the 
    tasks with which the fiduciary or designated recipient is 
    charged; or
        (3) provide a fiduciary or designated recipient a copy 
    in a record of any digital asset that, on the date the 
    custodian received the request for disclosure, the user 
    could have accessed if the user were alive and had full 
    capacity and access to the account.
    (b) A custodian may assess a reasonable administrative 
charge for the cost of disclosing digital assets under this 
Act.
    (c) A custodian need not disclose under this Act a digital 
asset deleted by a user.
    (d) If a user directs or a fiduciary requests a custodian 
to disclose under this Act some, but not all, of the user's 
digital assets, the custodian need not disclose the assets if 
segregation of the assets would impose an undue burden on the 
custodian.  If the custodian believes the direction or request 
imposes an undue burden, the custodian or fiduciary may seek an 
order from the court to disclose:
        (1) a subset limited by date of the user's digital 
    assets;
        (2) all of the user's digital assets to the fiduciary 
    or designated recipient;
        (3) none of the user's digital assets; or
        (4) all of the user's digital assets to the court for 
    review in camera.
 
    Section 7. Disclosure of content of electronic 
communications of deceased user. If a deceased user consented 
or a court directs disclosure of the contents of electronic 
communications of the user, the custodian shall disclose to the 
personal representative of the estate of the user the content 
of an electronic communication sent or received by the user if 
the representative gives the custodian:
        (1) a written request for disclosure in physical or 
    electronic form;
        (2) a certified copy of the death certificate of the 
    user;
        (3) a certified copy of the letter of appointment of 
    the representative or a court order;
        (4) unless the user provided direction using an online 
    tool, a copy of the user's will, trust, power of attorney, 
    or other record evidencing the user's consent to disclosure 
    of the content of electronic communications; and
        (5) if requested by the custodian:
            (A) a number, username, address, or other unique 
        subscriber or account identifier assigned by the 
        custodian to identify the user's account;
            (B) evidence linking the account to the user; or
            (C) a finding by the court that:
                (i) the user had a specific account with the 
            custodian, identifiable by the information 
            specified in subparagraph (A);
                (ii) disclosure of the content of electronic 
            communications of the user would not violate 18 
            U.S.C. Section 2701 et seq., as amended, 47 U.S.C. 
            Section 222, as amended, or other applicable law;
                (iii) unless the user provided direction using 
            an online tool, the user consented to disclosure of 
            the content of electronic communications; or
                (iv) disclosure of the content of electronic 
            communications of the user is permitted under this 
            Act and reasonably necessary for administration of 
            the estate.
 
    Section 8. Disclosure of other digital assets of deceased 
user. Unless the user prohibited disclosure of digital assets 
or the court directs otherwise, a custodian shall disclose to 
the personal representative of the estate of a deceased user a 
catalogue of electronic communications sent or received by the 
user and digital assets, other than the content of electronic 
communications, of the user, if the representative gives the 
custodian:
        (1) a written request for disclosure in physical or 
    electronic form;
        (2) a certified copy of the death certificate of the 
    user;
        (3) a certified copy of the letter of appointment of 
    the representative or a court order; and
        (4) if requested by the custodian:
            (A) a number, username, address, or other unique 
        subscriber or account identifier assigned by the 
        custodian to identify the user's account;
            (B) evidence linking the account to the user;
            (C) an affidavit stating that disclosure of the 
        user's digital assets is reasonably necessary for 
        administration of the estate; or
            (D) a finding by the court that:
                (i) the user had a specific account with the 
            custodian, identifiable by the information 
            specified in subparagraph (A); or
                (ii) disclosure of the user's digital assets 
            is permitted under this Act and reasonably 
            necessary for administration of the estate.
 
    Section 9. Disclosure of content of electronic 
communications of principal. To the extent a power of attorney 
expressly grants an agent authority over the content of 
electronic communications sent or received by the principal and 
unless directed otherwise by the principal or the court, a 
custodian shall disclose to the agent the content if the agent 
gives the custodian:
        (1) a written request for disclosure in physical or 
    electronic form;
        (2) an original or copy of the power of attorney 
    expressly granting the agent authority over the content of 
    electronic communications of the principal;
        (3) a certification by the agent, under penalty of 
    perjury, that the power of attorney is in effect; and
        (4) if requested by the custodian:
            (A) a number, username, address, or other unique 
        subscriber or account identifier assigned by the 
        custodian to identify the principal's account; or
            (B) evidence linking the account to the principal.
 
    Section 10. Disclosure of other digital assets of 
principal. Unless otherwise ordered by the court, directed by 
the principal, or provided by a power of attorney, a custodian 
shall disclose to an agent with specific authority over digital 
assets or general authority to act on behalf of a principal a 
catalogue of electronic communications sent or received by the 
principal and digital assets, other than the content of 
electronic communications, of the principal if the agent gives 
the custodian:
        (1) a written request for disclosure in physical or 
    electronic form;
        (2) an original or a copy of the power of attorney that 
    gives the agent specific authority over digital assets or 
    general authority to act on behalf of the principal;
        (3) a certification by the agent, under penalty of 
    perjury, that the power of attorney is in effect; and
        (4) if requested by the custodian:
            (A) a number, username, address, or other unique 
        subscriber or account identifier assigned by the 
        custodian to identify the principal's account; or
            (B) evidence linking the account to the principal.
 
    Section 11. Disclosure of digital assets held in trust when 
trustee is original user. Unless otherwise ordered by the court 
or provided in a trust, a custodian shall disclose to a trustee 
that is an original user of an account any digital asset of the 
account held in trust, including a catalogue of electronic 
communications of the trustee and the content of electronic 
communications.
 
    Section 12. Disclosure of contents of electronic 
communications held in trust when trustee not original user. 
Unless otherwise ordered by the court, directed by the user, or 
provided in a trust, a custodian shall disclose to a trustee 
that is not an original user of an account the content of an 
electronic communication sent or received by an original or 
successor user and carried, maintained, processed, received, 
or stored by the custodian in the account of the trust if the 
trustee gives the custodian:
        (1) a written request for disclosure in physical or 
    electronic form;
        (2) a certified copy of the trust instrument that 
    includes consent to disclosure of the content of electronic 
    communications to the trustee;
        (3) a certification by the trustee, under penalty of 
    perjury, that the trust exists and the trustee is a 
    currently acting trustee of the trust; and
        (4) if requested by the custodian:
            (A) a number, username, address, or other unique 
        subscriber or account identifier assigned by the 
        custodian to identify the trust's account; or
            (B) evidence linking the account to the trust.
 
    Section 13. Disclosure of other digital assets held in 
trust when trustee not original user. Unless otherwise ordered 
by the court, directed by the user, or provided in a trust, a 
custodian shall disclose, to a trustee that is not an original 
user of an account, a catalogue of electronic communications 
sent or received by an original or successor user and stored, 
carried, or maintained by the custodian in an account of the 
trust and any digital assets, other than the content of 
electronic communications, in which the trust has a right or 
interest if the trustee gives the custodian:
        (1) a written request for disclosure in physical or 
    electronic form;
        (2) a certified copy of the trust instrument;
        (3) a certification by the trustee, under penalty of 
    perjury, that the trust exists and the trustee is a 
    currently acting trustee of the trust; and
        (4) if requested by the custodian:
            (A) a number, username, address, or other unique 
        subscriber or account identifier assigned by the 
        custodian to identify the trust's account; or
            (B) evidence linking the account to the trust.
 
    Section 14. Disclosure of contents of electronic 
communications and digital assets to guardian of person with a 
disability.    (a) After an opportunity for a hearing under 
Article XIa of the Probate Act of 1975, the court may direct 
the disclosure of the digital assets of a person with a 
disability to his or her guardian.
    (b) Unless otherwise ordered by the court or directed by 
the user, a custodian shall disclose to a guardian the 
catalogue of electronic communications sent or received by a 
person with a disability and any digital assets, other than the 
content of electronic communications, in which the person with 
a disability has a right or interest if the guardian gives the 
custodian:
        (1) a written request for disclosure in physical or 
    electronic form;
        (2) a certified copy of the court order that gives the 
    guardian authority over the digital assets of the person 
    with a disability; and
        (3) if requested by the custodian:
            (A) a number, username, address, or other unique 
        subscriber or account identifier assigned by the 
        custodian to identify the account of the person with a 
        disability; or
            (B) evidence linking the account to the person with 
        a disability.
    (c) A guardian with general authority to manage the assets 
of a person with a disability may request a custodian of the 
digital assets of the person with a disability to suspend or 
terminate an account of the person with a disability for good 
cause.  A request made under this Section must be accompanied by 
a certified copy of the court order giving the guardian 
authority over the protected person's property.
 
    Section 15. Fiduciary duty and authority.
    (a) (Blank).
    (b) A fiduciary's or designated recipient's authority with 
respect to a digital asset of a user:
        (1) except as otherwise provided in Section 4, is 
    subject to the applicable terms of service;
        (2) is subject to other applicable law, including 
    copyright law;
        (3) in the case of a fiduciary, is limited by the scope 
    of the fiduciary's duties under Illinois law; and
        (4) may not be used to impersonate the user.
    (c) A fiduciary with authority over the property of a 
decedent, person with a disability, principal, or settlor has 
the right to access any digital asset in which the decedent, 
person with a disability, principal, or settlor had a right or 
interest and that is not held by a custodian or subject to a 
terms-of-service agreement.
    (d) A fiduciary acting within the scope of the fiduciary's 
duties is an authorized user of the property of the decedent, 
person with a disability, principal, or settlor for the purpose 
of applicable computer-fraud and unauthorized-computer-access 
laws, including Subdivision 30 of Article 17 of the Criminal 
Code of 2012, and may challenge the validity of an online tool 
in court when requesting an order directing compliance with 
this Act.
    (e) A fiduciary with authority over the tangible, personal 
property of a decedent, person with a disability, principal, or 
settlor:
        (1) has the right to access the property and any 
    digital asset stored in it; and
        (2) is an authorized user for the purpose of 
    computer-fraud and unauthorized-computer-access laws, 
    including Subdivision 30 of Article 17 of the Criminal Code 
    of 2012.
    (f) A custodian may disclose information in an account to a 
fiduciary of the user when the information is required to 
terminate an account used to access digital assets licensed to 
the user.
    (g) A fiduciary of a user may request a custodian to 
terminate the user's account.  A request for termination must be 
in writing, in either physical or electronic form, and 
accompanied by:
        (1) if the user is deceased, a certified copy of the 
    death certificate of the user;
        (2) a certified copy of the letter of appointment of 
    the representative or a small-estate affidavit or court 
    order, court order, power of attorney, or trust giving the 
    fiduciary authority over the account; and
        (3) if requested by the custodian:
            (A) a number, username, address, or other unique 
        subscriber or account identifier assigned by the 
        custodian to identify the user's account;
            (B) evidence linking the account to the user; or
            (C) a finding by the court that the user had a 
        specific account with the custodian, identifiable by 
        the information specified in subparagraph (A).
 
    Section 16. Custodian compliance and immunity.
    (a) Not later than 60 days after receipt of the information 
required under Sections 7 through 15, a custodian shall comply 
with a request under this Act from a fiduciary or designated 
recipient to disclose digital assets or terminate an account.  
If the custodian fails to comply, the fiduciary or designated 
recipient may apply to the court for an order directing 
compliance.
    (b) An order under subsection (a) directing compliance must 
contain a finding that compliance is not in violation of 18 
U.S.C. Section 2702, as amended.
    (c) A custodian may notify the user that a request for 
disclosure or to terminate an account was made under this Act.
    (d) A custodian may deny a request under this Act from a 
fiduciary or designated recipient for disclosure of digital 
assets or to terminate an account if the custodian is aware of 
any lawful access to the account following the receipt of the 
fiduciary's request.
    (e) This Act does not limit a custodian's ability to obtain 
or require a fiduciary or designated recipient requesting 
disclosure or termination under this Act to obtain a court 
order which:
        (1) specifies that an account belongs to the person 
    with a disability or principal;
        (2) specifies that there is sufficient consent from the 
    person with a disability or principal to support the 
    requested disclosure; and
        (3) contains a finding required by law other than this 
    Act.
    (f) A custodian and its officers, employees, and agents are 
immune from liability for an act or omission done in good 
faith, except for willful and wanton misconduct, in compliance 
with this Act.
 
    Section 17. (Blank).
 
    Section 18. Relation to Electronic Signatures in Global and 
National Commerce Act. This Act modifies, limits, or supersedes 
the Electronic Signatures in Global and National Commerce Act, 
15 U.S.C. Section 7001 et seq., but does not modify, limit, or 
supersede Section 101(c) of that Act, 15 U.S.C. Section 
7001(c), or authorize electronic delivery of any of the notices 
described in Section 103(b) of that Act, 15 U.S.C. Section 
7003(b).
 
    Section 19. Severability.  If any provision of this Act or 
its application to any person or circumstance is held invalid, 
the invalidity does not affect other provisions or applications 
of this Act which can be given effect without the invalid 
provision or application, and to this end the provisions of 
this Act are severable.
  
 
    Section 20. The Criminal Code of 2012 is amended  by 
changing Sections 17-51 and 17-54 as follows:
 



    (720 ILCS 5/17-51)  (was 720 ILCS 5/16D-3)


    Sec. 17-51. Computer tampering. 

    (a) A person commits
computer tampering when he or she 
knowingly and without the authorization of a
computer's owner 
or in excess of
the authority granted to him or her:


        (1) Accesses or causes to be accessed a computer or any 
    part thereof, a computer network, or
a program or data;


        (2) Accesses or causes to be accessed a computer or any 
    part thereof, a computer network, or
a program or data, and 
    obtains data or services;


        (3) Accesses or causes to be accessed a computer or any

    part thereof, a computer network, or a program or data, and 
    damages or destroys the computer or
alters, deletes, or 
    removes a computer program or data;


        (4) Inserts or attempts to insert a program into a 
    computer or
computer program knowing or having reason to 
    know that such program contains
information or commands 
    that will or may: 
            (A) damage or destroy that computer,
or any other 
        computer subsequently accessing or being accessed by 
        that
computer;
            (B) alter, delete, or remove a computer program or

        data from that computer, or any other computer program 
        or data in a
computer subsequently accessing or being 
        accessed by that computer; or
            (C) cause loss to the users of that computer or the 
        users of a
computer which accesses or which is accessed 
        by such program; or 


        (5) Falsifies or forges electronic mail transmission 
    information or
other
routing information in any manner in 
    connection with the transmission of
unsolicited bulk 
    electronic mail through or into the computer network of an

    electronic mail service provider or its subscribers.

    (a-5) Distributing software to falsify routing 
information. It is unlawful for any person knowingly to sell, 
give, or
otherwise
distribute or possess with the intent to 
sell, give, or distribute software
which:

        (1) is primarily designed or produced for the purpose 
    of facilitating or
enabling the falsification of 
    electronic mail transmission information or
other routing 
    information; 
        (2) has only a limited commercially significant

    purpose or use other than to facilitate or enable the 
    falsification of
electronic
mail transmission information 
    or other routing information; or 
        (3) is
marketed by that person or another acting in 
    concert with that person with
that person's knowledge for 
    use in facilitating or enabling the falsification
of

    electronic mail transmission information or other routing 
    information.

    (a-10) For purposes of subsection (a),  accessing a computer 
network is deemed to be with the authorization of a
computer's 
owner if:
        (1) the owner authorizes patrons, customers, or guests 
    to access the computer network and the person accessing the 
    computer network is  an authorized patron, customer,  or 
    guest and complies with all terms or conditions for use of 
    the computer network that are imposed by the owner; or
        (2) the owner authorizes the public to access the 
    computer network and the person accessing the computer 
    network complies with all terms or conditions for use of 
    the computer network that are imposed by the owner; or .
        (3) The person accesses the computer network in 
    compliance with the Revised Uniform Fiduciary Access to 
    Digital Assets Act (2015).

    (b) Sentence.


        (1) A person who commits computer
tampering as set 
    forth in subdivision (a)(1) or (a)(5) or subsection (a-5) 
    of this
Section is guilty
of a Class B misdemeanor.


        (2) A person who commits computer tampering as set 
    forth
in subdivision (a)(2) of this Section is guilty of a 
    Class A misdemeanor
and a Class 4 felony for the second or 
    subsequent offense.


        (3) A person who commits computer tampering as set 
    forth
in subdivision (a)(3) or (a)(4) of this Section is 
    guilty of a Class 4 felony
and a Class 3 felony for the 
    second or subsequent offense.


        (4) If an injury arises from the transmission of 
    unsolicited bulk
electronic
mail, the injured person, 
    other than an electronic mail service
provider, may also 
    recover attorney's fees and costs, and may elect, in lieu 
    of
actual damages, to recover the lesser of $10 for each 
    unsolicited
bulk electronic mail message transmitted in 
    violation of this Section, or
$25,000 per day.  The injured 
    person shall not have a cause of action
against the 
    electronic mail service provider that merely transmits the

    unsolicited bulk electronic mail over its computer 
    network.


        (5) If an injury arises from the transmission of 
    unsolicited bulk
electronic
mail,
an injured electronic 
    mail service provider may also recover
attorney's fees and 
    costs, and may elect, in lieu of actual damages, to recover

    the greater of $10 for each unsolicited electronic mail

    advertisement transmitted in violation of this Section, or 
    $25,000 per day.


        (6) The provisions of this Section shall not be 
    construed to limit any
person's
right to pursue any 
    additional civil remedy otherwise allowed by law.

    (c) Whoever suffers loss by reason of a violation of 
subdivision (a)(4)
of this Section may, in a civil action 
against the violator, obtain
appropriate relief.  In
a civil 
action under this Section, the court may award to the 
prevailing
party reasonable attorney's fees and other 
litigation expenses.

(Source: P.A. 95-326, eff. 1-1-08; 96-1000, eff. 7-2-10; 
96-1551, eff. 7-1-11.)

 



    (720 ILCS 5/17-54)  (was 720 ILCS 5/16D-7)



    Sec. 17-54. Evidence of lack of authority. For the purposes 
of Sections 17-50 through 17-52, the trier of fact may infer 
that a person accessed a computer without the authorization of 
its owner or in excess of the authority granted if the person 
accesses or causes to be accessed a computer, which access

requires a confidential or proprietary code which has not been 
issued to or
authorized for use by that person. This Section 
does not apply to a person who acquires access in compliance 
with the Revised Uniform Fiduciary Access to Digital Assets Act 
(2015). 

(Source: P.A. 96-1551, eff. 7-1-11.)

 
    Section 21. Effective date.  This Act takes effect upon 
becoming law.


Effective Date:  8/12/2016