SB1376 99TH GENERAL ASSEMBLY

LRB099 07681 HEP 27814 b

99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016
SB1376

Introduced 2/18/2015, by Sen. Michael E. Hastings

SYNOPSIS AS INTRODUCED:

New Act
720 ILCS 5/17-51	was 720 ILCS 5/16D-3
720 ILCS 5/17-54	was 720 ILCS 5/16D-7

Creates the Uniform Fiduciary Access to Digital Assets Act. Defines terms. Provides procedures and requirements for the access and control by guardians, executors, agents, and other fiduciaries to the digital assets of persons who are deceased, under a legal disability, or subject to the terms of a trust. Adds provisions concerning: fiduciary authority; compliance by the account custodian; immunity; applicability; construction; and the Act's relation to federal laws governing electronic signatures. Makes corresponding changes in the Criminal Code of 2012.

A BILL FOR

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 Uniform Fiduciary Access to Digital Assets Act.

Section 2. Definitions. In this Act:

(1) "Account holder" means a person that has entered into a terms-of-service agreement with a custodian or a fiduciary for the person.

(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 electronic communications.

(4) "Catalogue of electronic communications" means information that identifies each person with which an account holder 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 an account holder;

(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 an account holder.

(9) "Digital asset" means a record that is electronic. The term does not include an underlying asset or liability unless the asset or liability is itself a record that is electronic.

(10) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

(11) "Electronic communication" has the same meaning as the definition in 18 U.S.C. Section 2510(12).

(12) "Electronic-communication service" means a custodian that provides to an account holder the ability to send or receive an electronic communication.

(13) "Fiduciary" means an original, additional, or successor personal representative, guardian, agent, or trustee.

(14) "Information" means data, text, images, videos, sounds, codes, computer programs, software, databases, or the like.

(15) "Person" means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.

(16) "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.

(17) "Power of attorney" means a record that grants an agent authority to act in the place of a principal.

(18) "Principal" means an individual who grants authority to an agent in a power of attorney.

(19) "Disabled person" 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.

(20) "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.

(21) "Remote computing service" means a custodian that provides to an account holder 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).

(22) "Terms-of-service agreement" means an agreement that controls the relationship between an account holder and a custodian.

(23) "Trustee" means a fiduciary with legal title to property pursuant to an agreement or declaration that creates a beneficial interest in another. The term includes a successor trustee.

(24) "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 or agent 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, whether pending in a court or 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 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. Access by personal representative to digital asset of decedent. Subject to Section 8(b) and unless otherwise ordered by the court or provided in the will of a decedent, the personal representative of the decedent has the right to access:

(1) the content of an electronic communication that the custodian is permitted to disclose under the Electronic Communications Privacy Act, 18 U.S.C. Section 2702(b);

(2) any catalogue of electronic communications sent or received by the decedent; and

(3) any other digital asset in which at death the decedent had a right or interest.

Section 5. Access by guardian to digital asset of disabled person. Subject to Section 8(b), the court, after an opportunity for hearing under Article XIa of the Probate Act of 1975, may grant a guardian the right to access:

(1) the content of an electronic communication that the custodian is permitted to disclose under the Electronic Communications Privacy Act, 18 U.S.C. Section 2702(b);

(2) any catalogue of electronic communications sent or received by the disabled person; and

(3) any other digital asset in which the disabled person has a right or interest.

Section 6. Access by agent to digital asset of principal.

(a) To the extent a power of attorney expressly grants an agent authority over the content of an electronic communication of the principal and subject to Section 8(b), the agent has the right to access the content of an electronic communication that the custodian is permitted to disclose under the Electronic Communications Privacy Act, 18 U.S.C. Section 2702(b).

(b) Subject to Section 8(b) and unless otherwise ordered by the court or provided by a power of attorney, an agent has the right to access:

(1) any catalogue of electronic communications sent or received by the principal; and

(2) any other digital asset in which the principal has a right or interest.

Section 7. Access by trustee to digital asset.

(a) Subject to Section 8(b) and unless otherwise ordered by the court or provided in a trust, a trustee that is an original account holder has the right to access any digital asset held in trust, including any catalogue of electronic communications of the trustee and the content of an electronic communication.

(b) Subject to Section 8(b) and unless otherwise ordered by the court or provided in a trust, a trustee that is not an original account holder has the right to access:

(1) the content of an electronic communication that the custodian is permitted to disclose under the Electronic Communications Privacy Act, 18 U.S.C. Section 2702(b);

(2) any catalogue of electronic communications sent or received by the original or any successor account holder; and

(3) any other digital asset in which the original or any successor account holder has a right or interest.

Section 8. Fiduciary authority.

(a) A fiduciary that is an account holder or has the right under this Act to access a digital asset of an account holder:

(1) subject to the terms-of-service agreement, copyright law, and other applicable law, may take any action concerning the asset to the extent of the account holder's authority and the fiduciary's power under the law of this State other than this Act;

(2) has, for the purpose of applicable electronic privacy laws, the lawful consent of the account holder for the custodian to divulge the content of an electronic communication to the fiduciary; and

(3) is, for the purpose of applicable computer-fraud and unauthorized-computer-access laws, including Subdivision 30 of the Criminal Code of 2012, an authorized user.

(b) Unless an account holder, after the effective date of this Act, agrees to a provision in a terms-of-service agreement that limits a fiduciary's access to a digital asset of the account holder by an affirmative act separate from the account holder's assent to other provisions of the agreement:

(1) the provision is void as against the strong public policy of this State; and

(2) the fiduciary's access under this Act to a digital asset does not violate the terms-of-service agreement even if the agreement requires notice of a change in the account holder's status.

(c) A choice-of-law provision in a terms-of-service agreement is unenforceable against a fiduciary acting under this Act to the extent the provision designates law that enforces a limitation on a fiduciary's access to a digital asset, and the limitation is void under subsection (b).

(d) As to tangible personal property capable of receiving, storing, processing, or sending a digital asset, a fiduciary with authority over the property of a decedent, disabled person, 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 purposes of any applicable computer-fraud and unauthorized-computer-access laws, including Subdivision 30 of the Criminal Code of 2012.

Section 9. Compliance.

(a) If a fiduciary with a right under this Act to access a digital asset of an account holder complies with subsection (b), the custodian shall comply with the fiduciary's request in a record for:

(1) access to the asset;

(2) control of the asset; and

(3) a copy of the asset to the extent permitted by copyright law.

(b) If a request under subsection (a) is made by:

(1) a personal representative with the right of access under Section 4, the request must be accompanied by a certified copy of the letters of office or letters of administration of the personal representative, a small estate affidavit, or court order;

(2) a guardian with the right of access under Section 5, the request must be accompanied by a certified copy of the court order that gives the guardian authority over the digital asset;

(3) an agent with the right of access under Section 6, the request must be accompanied by an original or a copy of the power of attorney that authorizes the agent to exercise authority over the digital asset and a certification of the agent, under penalty of perjury, that the power of attorney is in effect; and

(4) a trustee with the right of access under Section 7, the request must be accompanied by a certified copy of the trust instrument that authorizes the trustee to exercise authority over the digital asset.

(c) A custodian shall comply with a request made under subsection (a) not later than 60 days after receipt. If the custodian fails to comply, the fiduciary may apply to the court for an order directing compliance.

(d) Instead of furnishing a copy of the trust instrument under subsection (b)(4), the trustee may provide a certification of trust. The certification:

(1) must contain the following information:

(A) that the trust exists and the date the trust instrument was executed;

(B) the identity of the settlor;

(C) the identity and address of the trustee;

(D) that there is nothing inconsistent in the trust with respect to the trustee's powers over digital assets;

(E) whether the trust is revocable and the identity of any person holding a power to revoke the trust;

(F) whether a cotrustee has authority to sign or otherwise authenticate; and

(G) whether all or fewer than all cotrustees are required to exercise powers of the trustee;

(2) must be signed or otherwise authenticated by a trustee;

(3) must state that the trust has not been revoked, modified, or amended in a manner that would cause the representations contained in the certification of trust to be incorrect; and

(4) need not contain the dispositive terms of the trust.

(e) A custodian that receives a certification under subsection (d) may require the trustee to provide copies of excerpts from the original trust instrument and later amendments designating the trustee and conferring on the trustee the power to act in the pending transaction.

(f) A custodian that acts in reliance on a certification under subsection (d) without knowledge that the representations contained in it are incorrect is not liable to any person for so acting and may assume without inquiry the existence of facts stated in the certification.

(g) A person that in good faith enters into a transaction in reliance on a certification under subsection (d) may enforce the transaction against the trust property as if the representations contained in the certification were correct.

(h) A person that demands the trust instrument in addition to a certification under subsection (d) or excerpts under subsection (e) is liable for damages, including attorneys' fees, if the court determines that the person did not act in good faith in demanding the instrument.

(i) This Section does not limit the right of a person to obtain a copy of a trust instrument in a judicial proceeding concerning the trust.

Section 10. Custodian immunity. A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good faith in compliance with this Act.

Section 11. Uniformity of application and construction. In applying and construing this uniform Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Section 12. 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 13. (Blank).

Section 14. 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 Uniform Fiduciary Access to Digital Assets Act.

(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 Uniform Fiduciary Access to Digital Assets Act.

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

Section 15. (Blank).