| |||||||
| |||||||
| |||||||
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 |
| |||||||
| |||||||
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 |
| |||||||
| |||||||
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 |
| |||||||
| |||||||
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 |
| |||||||
| |||||||
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. |
| |||||||
| |||||||
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 |
| |||||||
| |||||||
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. |
| |||||||
| |||||||
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); |
| |||||||
| |||||||
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 |
| |||||||
| |||||||
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) the user had a specific account with the | ||||||
11 | custodian, identifiable by the information | ||||||
12 | specified in subparagraph (A); or | ||||||
13 | (ii) disclosure of the user's digital assets | ||||||
14 | is permitted under this Act and reasonably | ||||||
15 | necessary for administration of the estate. | ||||||
16 | Section 9. Disclosure of content of electronic | ||||||
17 | communications of principal. To the extent a power of attorney | ||||||
18 | expressly grants an agent authority over the content of | ||||||
19 | electronic communications sent or received by the principal and | ||||||
20 | unless directed otherwise by the principal or the court, a | ||||||
21 | custodian shall disclose to the agent the content if the agent | ||||||
22 | gives the custodian: | ||||||
23 | (1) a written request for disclosure in physical or | ||||||
24 | electronic form; | ||||||
25 | (2) an original or copy of the power of attorney |
| |||||||
| |||||||
1 | expressly granting the agent authority over the content of | ||||||
2 | electronic communications of the principal; | ||||||
3 | (3) a certification by the agent, under penalty of | ||||||
4 | perjury, that the power of attorney is in effect; and | ||||||
5 | (4) if requested by the custodian: | ||||||
6 | (A) a number, username, address, or other unique | ||||||
7 | subscriber or account identifier assigned by the | ||||||
8 | custodian to identify the principal's account; or | ||||||
9 | (B) evidence linking the account to the principal. | ||||||
10 | Section 10. Disclosure of other digital assets of | ||||||
11 | principal. Unless otherwise ordered by the court, directed by | ||||||
12 | the principal, or provided by a power of attorney, a custodian | ||||||
13 | shall disclose to an agent with specific authority over digital | ||||||
14 | assets or general authority to act on behalf of a principal a | ||||||
15 | catalogue of electronic communications sent or received by the | ||||||
16 | principal and digital assets, other than the content of | ||||||
17 | electronic communications, of the principal if the agent gives | ||||||
18 | the custodian: | ||||||
19 | (1) a written request for disclosure in physical or | ||||||
20 | electronic form; | ||||||
21 | (2) an original or a copy of the power of attorney that | ||||||
22 | gives the agent specific authority over digital assets or | ||||||
23 | general authority to act on behalf of the principal; | ||||||
24 | (3) a certification by the agent, under penalty of | ||||||
25 | perjury, that the power of attorney is in effect; and |
| |||||||
| |||||||
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 principal's account; or | ||||||
5 | (B) evidence linking the account to the principal. | ||||||
6 | Section 11. Disclosure of digital assets held in trust when | ||||||
7 | trustee is original user. Unless otherwise ordered by the court | ||||||
8 | or provided in a trust, a custodian shall disclose to a trustee | ||||||
9 | that is an original user of an account any digital asset of the | ||||||
10 | account held in trust, including a catalogue of electronic | ||||||
11 | communications of the trustee and the content of electronic | ||||||
12 | communications. | ||||||
13 | Section 12. Disclosure of contents of electronic | ||||||
14 | communications held in trust when trustee not original user. | ||||||
15 | Unless otherwise ordered by the court, directed by the user, or | ||||||
16 | provided in a trust, a custodian shall disclose to a trustee | ||||||
17 | that is not an original user of an account the content of an | ||||||
18 | electronic communication sent or received by an original or | ||||||
19 | successor user and carried, maintained, processed, received, | ||||||
20 | or stored by the custodian in the account of the trust if the | ||||||
21 | trustee gives the custodian: | ||||||
22 | (1) a written request for disclosure in physical or | ||||||
23 | electronic form; | ||||||
24 | (2) a certified copy of the trust instrument that |
| |||||||
| |||||||
1 | includes consent to disclosure of the content of electronic | ||||||
2 | communications to the trustee; | ||||||
3 | (3) a certification by the trustee, under penalty of | ||||||
4 | perjury, that the trust exists and the trustee is a | ||||||
5 | currently acting trustee of the trust; and | ||||||
6 | (4) if requested by the custodian: | ||||||
7 | (A) a number, username, address, or other unique | ||||||
8 | subscriber or account identifier assigned by the | ||||||
9 | custodian to identify the trust's account; or | ||||||
10 | (B) evidence linking the account to the trust. | ||||||
11 | Section 13. Disclosure of other digital assets held in | ||||||
12 | trust when trustee not original user. Unless otherwise ordered | ||||||
13 | by the court, directed by the user, or provided in a trust, a | ||||||
14 | custodian shall disclose, to a trustee that is not an original | ||||||
15 | user of an account, a catalogue of electronic communications | ||||||
16 | sent or received by an original or successor user and stored, | ||||||
17 | carried, or maintained by the custodian in an account of the | ||||||
18 | trust and any digital assets, other than the content of | ||||||
19 | electronic communications, in which the trust has a right or | ||||||
20 | interest if the trustee gives the custodian: | ||||||
21 | (1) a written request for disclosure in physical or | ||||||
22 | electronic form; | ||||||
23 | (2) a certified copy of the trust instrument; | ||||||
24 | (3) a certification by the trustee, under penalty of | ||||||
25 | perjury, that the trust exists and the trustee is a |
| |||||||
| |||||||
1 | currently acting trustee of the trust; and | ||||||
2 | (4) if requested by the custodian: | ||||||
3 | (A) a number, username, address, or other unique | ||||||
4 | subscriber or account identifier assigned by the | ||||||
5 | custodian to identify the trust's account; or | ||||||
6 | (B) evidence linking the account to the trust. | ||||||
7 | Section 14. Disclosure of contents of electronic | ||||||
8 | communications and digital assets to guardian of person with a | ||||||
9 | disability. (a) After an opportunity for a hearing under | ||||||
10 | Article XIa of the Probate Act of 1975, the court may direct | ||||||
11 | the disclosure of the digital assets of a person with a | ||||||
12 | disability to his or her guardian. | ||||||
13 | (b) Unless otherwise ordered by the court or directed by | ||||||
14 | the user, a custodian shall disclose to a guardian the | ||||||
15 | catalogue of electronic communications sent or received by a | ||||||
16 | person with a disability and any digital assets, other than the | ||||||
17 | content of electronic communications, in which the person with | ||||||
18 | a disability has a right or interest if the guardian gives the | ||||||
19 | custodian: | ||||||
20 | (1) a written request for disclosure in physical or | ||||||
21 | electronic form; | ||||||
22 | (2) a certified copy of the court order that gives the | ||||||
23 | guardian authority over the digital assets of the person | ||||||
24 | with a disability; and | ||||||
25 | (3) if requested by the custodian: |
| |||||||
| |||||||
1 | (A) a number, username, address, or other unique | ||||||
2 | subscriber or account identifier assigned by the | ||||||
3 | custodian to identify the account of the person with a | ||||||
4 | disability; or | ||||||
5 | (B) evidence linking the account to the person with | ||||||
6 | a disability. | ||||||
7 | (c) A guardian with general authority to manage the assets | ||||||
8 | of a person with a disability may request a custodian of the | ||||||
9 | digital assets of the person with a disability to suspend or | ||||||
10 | terminate an account of the person with a disability for good | ||||||
11 | cause. A request made under this Section must be accompanied by | ||||||
12 | a certified copy of the court order giving the guardian | ||||||
13 | authority over the protected person's property. | ||||||
14 | Section 15. Fiduciary duty and authority. | ||||||
15 | (a) (Blank). | ||||||
16 | (b) A fiduciary's or designated recipient's authority with | ||||||
17 | respect to a digital asset of a user: | ||||||
18 | (1) except as otherwise provided in Section 4, is | ||||||
19 | subject to the applicable terms of service; | ||||||
20 | (2) is subject to other applicable law, including | ||||||
21 | copyright law; | ||||||
22 | (3) in the case of a fiduciary, is limited by the scope | ||||||
23 | of the fiduciary's duties under Illinois law; and | ||||||
24 | (4) may not be used to impersonate the user. | ||||||
25 | (c) A fiduciary with authority over the property of a |
| |||||||
| |||||||
1 | decedent, person with a disability, principal, or settlor has | ||||||
2 | the right to access any digital asset in which the decedent, | ||||||
3 | person with a disability, principal, or settlor had a right or | ||||||
4 | interest and that is not held by a custodian or subject to a | ||||||
5 | terms-of-service agreement. | ||||||
6 | (d) A fiduciary acting within the scope of the fiduciary's | ||||||
7 | duties is an authorized user of the property of the decedent, | ||||||
8 | person with a disability, principal, or settlor for the purpose | ||||||
9 | of applicable computer-fraud and unauthorized-computer-access | ||||||
10 | laws, including Subdivision 30 of Article 17 of the Criminal | ||||||
11 | Code of 2012, and may challenge the validity of an online tool | ||||||
12 | in court when requesting an order directing compliance with | ||||||
13 | this Act. | ||||||
14 | (e) A fiduciary with authority over the tangible, personal | ||||||
15 | property of a decedent, person with a disability, principal, or | ||||||
16 | settlor: | ||||||
17 | (1) has the right to access the property and any | ||||||
18 | digital asset stored in it; and | ||||||
19 | (2) is an authorized user for the purpose of | ||||||
20 | computer-fraud and unauthorized-computer-access laws, | ||||||
21 | including Subdivision 30 of Article 17 of the Criminal Code | ||||||
22 | of 2012. | ||||||
23 | (f) A custodian may disclose information in an account to a | ||||||
24 | fiduciary of the user when the information is required to | ||||||
25 | terminate an account used to access digital assets licensed to | ||||||
26 | the user. |
| |||||||
| |||||||
1 | (g) A fiduciary of a user may request a custodian to | ||||||
2 | terminate the user's account. A request for termination must be | ||||||
3 | in writing, in either physical or electronic form, and | ||||||
4 | accompanied by: | ||||||
5 | (1) if the user is deceased, a certified copy of the | ||||||
6 | death certificate of the user; | ||||||
7 | (2) a certified copy of the letter of appointment of | ||||||
8 | the representative or a small-estate affidavit or court | ||||||
9 | order, court order, power of attorney, or trust giving the | ||||||
10 | fiduciary authority over the account; and | ||||||
11 | (3) if requested by the custodian: | ||||||
12 | (A) a number, username, address, or other unique | ||||||
13 | subscriber or account identifier assigned by the | ||||||
14 | custodian to identify the user's account; | ||||||
15 | (B) evidence linking the account to the user; or | ||||||
16 | (C) a finding by the court that the user had a | ||||||
17 | specific account with the custodian, identifiable by | ||||||
18 | the information specified in subparagraph (A). | ||||||
19 | Section 16. Custodian compliance and immunity. | ||||||
20 | (a) Not later than 60 days after receipt of the information | ||||||
21 | required under Sections 7 through 15, a custodian shall comply | ||||||
22 | with a request under this Act from a fiduciary or designated | ||||||
23 | recipient to disclose digital assets or terminate an account. | ||||||
24 | If the custodian fails to comply, the fiduciary or designated | ||||||
25 | recipient may apply to the court for an order directing |
| |||||||
| |||||||
1 | compliance. | ||||||
2 | (b) An order under subsection (a) directing compliance must | ||||||
3 | contain a finding that compliance is not in violation of 18 | ||||||
4 | U.S.C. Section 2702, as amended. | ||||||
5 | (c) A custodian may notify the user that a request for | ||||||
6 | disclosure or to terminate an account was made under this Act. | ||||||
7 | (d) A custodian may deny a request under this Act from a | ||||||
8 | fiduciary or designated recipient for disclosure of digital | ||||||
9 | assets or to terminate an account if the custodian is aware of | ||||||
10 | any lawful access to the account following the receipt of the | ||||||
11 | fiduciary's request. | ||||||
12 | (e) This Act does not limit a custodian's ability to obtain | ||||||
13 | or require a fiduciary or designated recipient requesting | ||||||
14 | disclosure or termination under this Act to obtain a court | ||||||
15 | order which: | ||||||
16 | (1) specifies that an account belongs to the person | ||||||
17 | with a disability or principal; | ||||||
18 | (2) specifies that there is sufficient consent from the | ||||||
19 | person with a disability or principal to support the | ||||||
20 | requested disclosure; and | ||||||
21 | (3) contains a finding required by law other than this | ||||||
22 | Act. | ||||||
23 | (f) A custodian and its officers, employees, and agents are | ||||||
24 | immune from liability for an act or omission done in good | ||||||
25 | faith, except for willful and wanton misconduct, in compliance | ||||||
26 | with this Act. |
| |||||||
| |||||||
1 | Section 17. (Blank). | ||||||
2 | Section 18. Relation to Electronic Signatures in Global and | ||||||
3 | National Commerce Act. This Act modifies, limits, or supersedes | ||||||
4 | the Electronic Signatures in Global and National Commerce Act, | ||||||
5 | 15 U.S.C. Section 7001 et seq., but does not modify, limit, or | ||||||
6 | supersede Section 101(c) of that Act, 15 U.S.C. Section | ||||||
7 | 7001(c), or authorize electronic delivery of any of the notices | ||||||
8 | described in Section 103(b) of that Act, 15 U.S.C. Section | ||||||
9 | 7003(b). | ||||||
10 | Section 19. Severability. If any provision of this Act or | ||||||
11 | its application to any person or circumstance is held invalid, | ||||||
12 | the invalidity does not affect other provisions or applications | ||||||
13 | of this Act which can be given effect without the invalid | ||||||
14 | provision or application, and to this end the provisions of | ||||||
15 | this Act are severable.
| ||||||
16 | Section 20. The Criminal Code of 2012 is amended by | ||||||
17 | changing Sections 17-51 and 17-54 as follows:
| ||||||
18 | (720 ILCS 5/17-51) (was 720 ILCS 5/16D-3)
| ||||||
19 | Sec. 17-51. Computer tampering.
| ||||||
20 | (a) A person commits
computer tampering when he or she | ||||||
21 | knowingly and without the authorization of a
computer's owner |
| |||||||
| |||||||
1 | or in excess of
the authority granted to him or her:
| ||||||
2 | (1) Accesses or causes to be accessed a computer or any | ||||||
3 | part thereof, a computer network, or
a program or data;
| ||||||
4 | (2) Accesses or causes to be accessed a computer or any | ||||||
5 | part thereof, a computer network, or
a program or data, and | ||||||
6 | obtains data or services;
| ||||||
7 | (3) Accesses or causes to be accessed a computer or any
| ||||||
8 | part thereof, a computer network, or a program or data, and | ||||||
9 | damages or destroys the computer or
alters, deletes, or | ||||||
10 | removes a computer program or data;
| ||||||
11 | (4) Inserts or attempts to insert a program into a | ||||||
12 | computer or
computer program knowing or having reason to | ||||||
13 | know that such program contains
information or commands | ||||||
14 | that will or may: | ||||||
15 | (A) damage or destroy that computer,
or any other | ||||||
16 | computer subsequently accessing or being accessed by | ||||||
17 | that
computer; | ||||||
18 | (B) alter, delete, or remove a computer program or
| ||||||
19 | data from that computer, or any other computer program | ||||||
20 | or data in a
computer subsequently accessing or being | ||||||
21 | accessed by that computer; or | ||||||
22 | (C) cause loss to the users of that computer or the | ||||||
23 | users of a
computer which accesses or which is accessed | ||||||
24 | by such program; or
| ||||||
25 | (5) Falsifies or forges electronic mail transmission | ||||||
26 | information or
other
routing information in any manner in |
| |||||||
| |||||||
1 | connection with the transmission of
unsolicited bulk | ||||||
2 | electronic mail through or into the computer network of an
| ||||||
3 | electronic mail service provider or its subscribers.
| ||||||
4 | (a-5) Distributing software to falsify routing | ||||||
5 | information. It is unlawful for any person knowingly to sell, | ||||||
6 | give, or
otherwise
distribute or possess with the intent to | ||||||
7 | sell, give, or distribute software
which:
| ||||||
8 | (1) is primarily designed or produced for the purpose | ||||||
9 | of facilitating or
enabling the falsification of | ||||||
10 | electronic mail transmission information or
other routing | ||||||
11 | information; | ||||||
12 | (2) has only a limited commercially significant
| ||||||
13 | purpose or use other than to facilitate or enable the | ||||||
14 | falsification of
electronic
mail transmission information | ||||||
15 | or other routing information; or | ||||||
16 | (3) is
marketed by that person or another acting in | ||||||
17 | concert with that person with
that person's knowledge for | ||||||
18 | use in facilitating or enabling the falsification
of
| ||||||
19 | electronic mail transmission information or other routing | ||||||
20 | information.
| ||||||
21 | (a-10) For purposes of subsection (a), accessing a computer | ||||||
22 | network is deemed to be with the authorization of a
computer's | ||||||
23 | owner if: | ||||||
24 | (1) the owner authorizes patrons, customers, or guests | ||||||
25 | to access the computer network and the person accessing the | ||||||
26 | computer network is an authorized patron, customer, or |
| |||||||
| |||||||
1 | guest and complies with all terms or conditions for use of | ||||||
2 | the computer network that are imposed by the owner; or | ||||||
3 | (2) the owner authorizes the public to access the | ||||||
4 | computer network and the person accessing the computer | ||||||
5 | network complies with all terms or conditions for use of | ||||||
6 | the computer network that are imposed by the owner ; or . | ||||||
7 | (3) The person accesses the computer network in | ||||||
8 | compliance with the Revised Uniform Fiduciary Access to | ||||||
9 | Digital Assets Act (2015).
| ||||||
10 | (b) Sentence.
| ||||||
11 | (1) A person who commits computer
tampering as set | ||||||
12 | forth in subdivision (a)(1) or (a)(5) or subsection (a-5) | ||||||
13 | of this
Section is guilty
of a Class B misdemeanor.
| ||||||
14 | (2) A person who commits computer tampering as set | ||||||
15 | forth
in subdivision (a)(2) of this Section is guilty of a | ||||||
16 | Class A misdemeanor
and a Class 4 felony for the second or | ||||||
17 | subsequent offense.
| ||||||
18 | (3) A person who commits computer tampering as set | ||||||
19 | forth
in subdivision (a)(3) or (a)(4) of this Section is | ||||||
20 | guilty of a Class 4 felony
and a Class 3 felony for the | ||||||
21 | second or subsequent offense.
| ||||||
22 | (4) If an injury arises from the transmission of | ||||||
23 | unsolicited bulk
electronic
mail, the injured person, | ||||||
24 | other than an electronic mail service
provider, may also | ||||||
25 | recover attorney's fees and costs, and may elect, in lieu | ||||||
26 | of
actual damages, to recover the lesser of $10 for each |
| |||||||
| |||||||
1 | unsolicited
bulk electronic mail message transmitted in | ||||||
2 | violation of this Section, or
$25,000 per day. The injured | ||||||
3 | person shall not have a cause of action
against the | ||||||
4 | electronic mail service provider that merely transmits the
| ||||||
5 | unsolicited bulk electronic mail over its computer | ||||||
6 | network.
| ||||||
7 | (5) If an injury arises from the transmission of | ||||||
8 | unsolicited bulk
electronic
mail,
an injured electronic | ||||||
9 | mail service provider may also recover
attorney's fees and | ||||||
10 | costs, and may elect, in lieu of actual damages, to recover
| ||||||
11 | the greater of $10 for each unsolicited electronic mail
| ||||||
12 | advertisement transmitted in violation of this Section, or | ||||||
13 | $25,000 per day.
| ||||||
14 | (6) The provisions of this Section shall not be | ||||||
15 | construed to limit any
person's
right to pursue any | ||||||
16 | additional civil remedy otherwise allowed by law.
| ||||||
17 | (c) Whoever suffers loss by reason of a violation of | ||||||
18 | subdivision (a)(4)
of this Section may, in a civil action | ||||||
19 | against the violator, obtain
appropriate relief. In
a civil | ||||||
20 | action under this Section, the court may award to the | ||||||
21 | prevailing
party reasonable attorney's fees and other | ||||||
22 | litigation expenses.
| ||||||
23 | (Source: P.A. 95-326, eff. 1-1-08; 96-1000, eff. 7-2-10; | ||||||
24 | 96-1551, eff. 7-1-11 .)
| ||||||
25 | (720 ILCS 5/17-54) (was 720 ILCS 5/16D-7)
|
| |||||||
| |||||||
1 | Sec. 17-54. Evidence of lack of authority. For the purposes | ||||||
2 | of Sections 17-50 through 17-52, the trier of fact may infer | ||||||
3 | that a person accessed a computer without the authorization of | ||||||
4 | its owner or in excess of the authority granted if the person | ||||||
5 | accesses or causes to be accessed a computer, which access
| ||||||
6 | requires a confidential or proprietary code which has not been | ||||||
7 | issued to or
authorized for use by that person. This Section | ||||||
8 | does not apply to a person who acquires access in compliance | ||||||
9 | with the Revised Uniform Fiduciary Access to Digital Assets Act | ||||||
10 | (2015).
| ||||||
11 | (Source: P.A. 96-1551, eff. 7-1-11 .)
| ||||||
12 | Section 21. Effective date. This Act takes effect upon | ||||||
13 | becoming law.
|