HB3601 103RD GENERAL ASSEMBLY

LRB103 28339 SPS 54718 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB3601

Introduced 2/17/2023, by Rep. Michelle Mussman

SYNOPSIS AS INTRODUCED:

New Act
815 ILCS 505/2BBBB new

Creates the Educational Technology Right to Repair Act. Provides that, for educational technology equipment and parts for educational technology equipment sold or used in the State, an original equipment manufacturer shall make available to an independent repair provider, solely for the purpose of repairing educational technology equipment, on fair and reasonable terms, any documentation, parts, service access methods, and tools, including, but not limited to, any updates to information, firmware, or embedded software that is needed for purposes of repair of educational technology equipment and training courses and materials on the operation, inspection, diagnosis, maintenance, and repair of educational technology equipment. Provides that a violation of any of the provisions of the Act is an unlawful practice under the Consumer Fraud and Deceptive Business Practices Act. Provides for penalties. Provides that nothing in the Act shall require an original equipment manufacturer to divulge a trade secret to an independent repair provider. Amends the Consumer Fraud and Deceptive Business Practices Act making a conforming change. Effective January 1, 2024.

A BILL FOR

AN ACT concerning business.

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 Educational Technology Right to Repair Act.

Section 5. Definitions. As used in this Act:

"Authorized repair provider" means an individual or business who has an arrangement with the original equipment manufacturer under which the original equipment manufacturer grants to the individual or business a license to use a trade name, service mark, or other proprietary identifier for the purposes of offering the services of diagnosis, maintenance, or repair of educational technology equipment under the name of the original equipment manufacturer, or other arrangement with the original equipment manufacturer to offer such services on behalf of the original equipment manufacturer. An original equipment manufacturer who offers the services of diagnosis, maintenance, or repair of its own educational technology equipment, and who does not have an arrangement with an unaffiliated individual or business, shall be considered an authorized repair provider with respect to educational technology equipment.

"Documentation" means any manual, diagram, reporting output, service code description, schematic diagram, security codes, passwords, or other guidance or information used in effecting the services of diagnosis, maintenance, or repair of educational technology equipment.

"Educational technology equipment" means any self-contained portable personal computer, including accessories or attachments that come as standard equipment with the computer, purchased by a publicly-funded school and used by students at home or in the classroom. "Educational technology equipment" does not include devices that are sold through a retail seller or under a specific business-to-business contract.

"Fair and reasonable terms" means making available parts, tools, or documentation as follows:

(1) that documentation is made available by the original equipment manufacturer at no charge, except that, when the documentation is requested in physical printed form, a charge may be included for the reasonable, actual costs of preparing and sending the copy;

(2) that tools are made available by the original equipment manufacturer at no charge and without requiring authorization or internet access for use or operation of the tool, or imposing impediments to access or use of the tools to diagnose, maintain, or repair and enable full functionality of digital electronic equipment, or in a manner that impairs the efficient and cost-effective performance of any the diagnosis, maintenance, or repair, except that, when the tool is requested in physical form, a charge may be included for the reasonable, actual costs of preparing and sending the tool; and

(3) that parts are made available by the original equipment manufacturer, either directly or through an authorized repair provider, to independents repair providers and owners at costs and terms that are equivalent to the most favorable costs and terms under which an original equipment manufacturer offers the parts to an authorized repair provider and that:

(A) accounts for any discount, rebate, convenient and timely means of delivery, means of enabling fully restored and updated functionality, rights of use, or other incentive and preference the original manufacturer offers to an authorized repair provider, or any additional cost, burden, or impediment the original equipment manufacturer imposes on an owner or independent repair provider;

(B) is not conditioned on or imposing a substantial obligation or restriction that is not reasonably necessary for enabling the owner or independent repair provider to engage in the diagnosis, maintenance, or repair of equipment made by or on behalf of the original equipment manufacturer; and

(C) is not conditioned on an arrangement with the original equipment manufacturer.

"Independent repair provider" means an individual or business operating in this State that is unaffiliated with an original equipment manufacturer that is engaged in the services of diagnosis, maintenance, or repair of educational technology equipment.

"Necessary software updates" means security updates to patch exploits that, if left unaddressed, leave the user vulnerable to cyber crime, bug fixes, patches, corrections, or other modifications to Software which do not necessarily add enhanced features or performance characteristics released by the original equipment manufacturer or operating system developer.

"Original equipment manufacturer" means a business engaged in the business of selling, leasing, or otherwise supplying new educational technology equipment manufactured by or on behalf of itself, to any individual or business.

"Operating system" means a program that acts as the interface between educational technology equipment's hardware and its software, managing the resources of the equipment and providing common services for computer programs.

"Operating system developer" means a business engaged in the business of selling, leasing, licensing, or otherwise supplying operating system executable code, embedded software, or firmware for use by educational technology equipment by or on behalf of itself, to any individual or business.

"Part" means any replacement part, either new or used, made available by an original equipment manufacturer for purposes of effecting the services of maintenance or repair of educational technology equipment manufactured by or on behalf of, sold, or otherwise supplied by the original equipment manufacturer.

"School" means an elementary or secondary school or another entity which owns or leases educational technology equipment for use by students in such an institution. It includes personnel who manage and service educational technology equipment in their official capacity at a school, including, but not limited to, information technology professionals and technology specialists.

"Tools" means any software program, hardware implement, or other apparatus used for diagnosis, maintenance, or repair of educational technology equipment, including software or other mechanisms that provision, program, or pair a new part, calibrate functionality, or perform any other function required to bring the product back to fully functional condition, including any updates.

"Trade secret" has the meaning given to that term in subsection (d) of Section 2 of the Illinois Trade Secrets Act.

Section 10. Requirements.

(a) For educational technology equipment and parts for educational technology equipment that are sold or used in this State, an original equipment manufacturer shall make available to any independent repair provider and owner of educational technology equipment manufactured by on behalf of, or sold by such original equipment manufacturer, on fair and reasonable terms, any documentation, parts, and tools, required for the diagnosis, maintenance, or repair of educational technology equipment and parts for educational technology equipment, inclusive of any updates to information. The documentation parts and tools shall be made available either directly by the original equipment manufacturer or via an authorized repair provider.

(b) For equipment that contains an electronic security lock or other security-related function, the original equipment manufacturer shall make available to any owner and independent repair provider, on fair and reasonable terms, any special documentation, tools, and parts needed to access and reset the lock or function when disabled in the course of diagnosis, maintenance, or repair of educational technology equipment. The documentation, tools, and parts may be made available through appropriate secure release systems.

(c) For educational technology equipment sold or used in this State, an original equipment manufacturer shall provide functional parts to effect the repair of equipment for at least 10 years after the date a product model or type was manufactured.

(d) For educational technology equipment sold or used in this State, an original equipment manufacturer operating system developer shall provide necessary software updates of equipment for at least 10 years after the date a product model or type was manufactured.

Section 15. Enforcement by Attorney General. A violation of any of the provisions of this Act is an unlawful practice under the Consumer Fraud and Deceptive Business Practices Act. All remedies, penalties, and authority granted to the Attorney General by that Act shall be available to him or her for the enforcement of this Act.

Section 20. Limitations.

(a) Nothing in this Act shall require an original equipment manufacturer to divulge any trade secret to any owner or independent service provider.

(b) Nothing in this Act shall alter the terms of any arrangement in force between an authorized repair provider and an original equipment manufacturer, including, but not limited to, the performance or provision of warranty or recall repair work by an authorized repair provider on behalf of an original equipment manufacturer and pursuant to such arrangement, except that any provision in the terms that purports to waive, avoid, restrict or limit the original equipment manufacturer's obligations to comply with this Act shall be void and unenforceable.

(c) No original equipment manufacturer or authorized repair provider shall be liable for any damage or injury caused to any educational technology equipment by an independent repair provider or owner which occurs during the course of repair, diagnosis, or maintenance.

Section 25. Exclusions. Nothing in this Act shall apply to any smartphones, tablets without an attached keyboard, or similar devices.

Section 30. Applicability. This Act applies with respect to equipment sold or in use on or after the effective date of this Act.

Section 90. The Consumer Fraud and Deceptive Business Practices Act is amended by adding Section 2BBBB as follows:

(815 ILCS 505/2BBBB new)

Sec. 2BBBB. Violations of the Educational Technology Right to Repair Act. A person who violates the Educational Technology Right to Repair Act commits an unlawful practice within the meaning of this Act.

Section 99. Effective date. This Act takes effect January 1, 2024.