Full Text of SB2363 94th General Assembly
SB2363eng 94TH GENERAL ASSEMBLY
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| AN ACT concerning regulation.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Financial Institutions Electronic Documents | 5 |
| and Digital Signature Act is amended by changing Sections 5 and | 6 |
| 10 as follows:
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| (205 ILCS 705/5)
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| Sec. 5. Definitions. As used in this Act:
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| "Digital signature" means an encrypted
electronic | 10 |
| identifier, created by computer, intended by the party using it | 11 |
| to
have the same force and effect as the use of a manual | 12 |
| signature.
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| "Financial institution" means a bank,
a savings
and loan | 14 |
| association, a savings bank, or
a credit
union or any | 15 |
| subsidiary or affiliate of a bank, savings and loan | 16 |
| association, savings bank, or credit union .
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| "Substitute check" means a paper reproduction of an | 18 |
| original check, as defined in the Check Clearing for the 21st | 19 |
| Century Act (12 U.S.C. 5001, et seq.), as amended from time to | 20 |
| time, and the rules promulgated thereunder.
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| (Source: P.A. 94-458, eff. 8-4-05.)
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| (205 ILCS 705/10)
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| Sec. 10. Electronic documents; digital signatures ; | 24 |
| electronic notices .
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| (a) Electronic documents. If in the regular course of | 26 |
| business, a financial institution possesses,
records, or | 27 |
| generates any document, representation, image, substitute | 28 |
| check, reproduction, or
combination thereof, of any agreement, | 29 |
| transaction, act, occurrence, or event
by any electronic or | 30 |
| computer-generated process that accurately reproduces,
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| comprises, or records the agreement, transaction, act, |
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| occurrence, or event,
the recording, comprising, or | 2 |
| reproduction shall have the same force and effect under the | 3 |
| laws of this State
as one comprised, recorded, or created on | 4 |
| paper or other tangible form by
writing, typing, printing, or | 5 |
| similar means.
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| (b) Digital signatures. In any communication, | 7 |
| acknowledgement, agreement, or contract between a
financial | 8 |
| institution and its customer, in which a signature is required | 9 |
| or
used, any party to the communication, acknowledgement, | 10 |
| agreement, or contract
may affix a signature by use of a | 11 |
| digital signature, and the digital signature,
when lawfully | 12 |
| used by the person whose signature it purports to be,
shall | 13 |
| have the same force and effect as the use of a manual signature | 14 |
| if it is
unique to the person using it, is capable of | 15 |
| verification, is under the sole
control of the person using it, | 16 |
| and is linked to data in such a manner that if
the data are | 17 |
| changed, the digital signature is invalidated. Nothing in this
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| Section shall require any financial institution or customer to | 19 |
| use or permit
the use of a digital signature.
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| (c) Electronic notices. | 21 |
| (1) Consent to electronic records. If a statute, | 22 |
| regulation, or other rule of law requires that information | 23 |
| relating to a transaction or transactions in or affecting | 24 |
| intrastate commerce in this State be provided or made | 25 |
| available by a financial institution to a consumer in | 26 |
| writing, the use of an electronic record to provide or make | 27 |
| available that information satisfies the requirement that | 28 |
| the information be in writing if: | 29 |
| (A) the consumer has affirmatively consented to | 30 |
| the use of an electronic record to provide or make | 31 |
| available that information and has not withdrawn | 32 |
| consent; | 33 |
| (B) the consumer, prior to consenting, is provided | 34 |
| with a clear and conspicuous statement: | 35 |
| (i) informing the consumer of: | 36 |
| (I) any right or option of the consumer to |
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| have the record provided or made available on | 2 |
| paper or in nonelectronic form, and | 3 |
| (II) the right of the consumer to withdraw | 4 |
| the consent to have the record provided or made | 5 |
| available in an electronic form and of any | 6 |
| conditions, consequences (which may include | 7 |
| termination of the parties' relationship), or | 8 |
| fees in the event of a withdrawal of consent; | 9 |
| (ii) informing the consumer of whether the | 10 |
| consent applies: | 11 |
| (I) only to the particular transaction | 12 |
| that gave rise to the obligation to provide the | 13 |
| record, or | 14 |
| (II) to identified categories of records | 15 |
| that may be provided or made available during | 16 |
| the course of the parties' relationship; | 17 |
| (iii) describing the procedures the consumer | 18 |
| must use to withdraw consent, as provided in clause | 19 |
| (i), and to update information needed to contact | 20 |
| the consumer electronically; and | 21 |
| (iv) informing the consumer: | 22 |
| (I) how, after the consent, the consumer | 23 |
| may, upon request, obtain a paper copy of an | 24 |
| electronic record, and | 25 |
| (II) whether any fee will be charged for a | 26 |
| paper copy; | 27 |
| (C) the consumer: | 28 |
| (i) prior to consenting, is provided with a | 29 |
| statement of the hardware and software | 30 |
| requirements for access to and retention of the | 31 |
| electronic records; and | 32 |
| (ii) consents electronically, or confirms his | 33 |
| or her consent electronically, in a manner that | 34 |
| reasonably demonstrates that the consumer can | 35 |
| access information in the electronic form that | 36 |
| will be used to provide the information that is the |
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| subject of the consent;
and | 2 |
| (D) after the consent of a consumer in accordance | 3 |
| with subparagraph (A), if a change in the hardware or | 4 |
| software requirements needed to access or retain | 5 |
| electronic records creates a material risk that the | 6 |
| consumer will not be able to access or retain a | 7 |
| subsequent electronic record that was the subject of | 8 |
| the consent, the person providing the electronic | 9 |
| record: | 10 |
| (i) provides the consumer with a statement of: | 11 |
| (I) the revised hardware and software | 12 |
| requirements for access to and retention of the | 13 |
| electronic records, and | 14 |
| (II) the right to withdraw consent without | 15 |
| the imposition of any fees for the withdrawal | 16 |
| and without the imposition of any condition or | 17 |
| consequence that was not disclosed under | 18 |
| subparagraph (B)(i); and | 19 |
| (ii) again complies with subparagraph (C). | 20 |
| (2) Other rights. | 21 |
| (A) Preservation of consumer protections. Nothing | 22 |
| in this subsection (c) affects the content or timing of | 23 |
| any disclosure or other record required to be provided | 24 |
| or made available to any consumer under any statute, | 25 |
| regulation, or other rule of law. | 26 |
| (B) Verification or acknowledgment. If a law that | 27 |
| was enacted prior to this amendatory Act of the 94th | 28 |
| General Assembly expressly requires a record to be | 29 |
| provided or made available by a specified method that | 30 |
| requires verification or acknowledgment of receipt, | 31 |
| the record may be provided or made available | 32 |
| electronically only if the method used provides the | 33 |
| required verification or acknowledgment of receipt. | 34 |
| (3) Effect of failure to obtain electronic consent or | 35 |
| confirmation of consent. The legal effectiveness, | 36 |
| validity, or enforceability of any contract executed by a |
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| consumer shall not be denied solely because of the failure | 2 |
| to obtain electronic consent or confirmation of consent by | 3 |
| that consumer in accordance with paragraph (1)(C)(ii). | 4 |
| (4) Prospective effect. Withdrawal of consent by a | 5 |
| consumer shall not affect the legal effectiveness, | 6 |
| validity, or enforceability of electronic records provided | 7 |
| or made available to that consumer in accordance with | 8 |
| paragraph (1) prior to implementation of the consumer's | 9 |
| withdrawal of consent. A consumer's withdrawal of consent | 10 |
| shall be effective within a reasonable period of time after | 11 |
| receipt of the withdrawal by the provider of the record. | 12 |
| Failure to comply with paragraph (1)(D) may, at the | 13 |
| election of the consumer, be treated as a withdrawal of | 14 |
| consent for purposes of this paragraph. | 15 |
| (5) Prior consent. This subsection does not apply to | 16 |
| any records that are provided or made available to a | 17 |
| consumer who has consented prior to the effective date of | 18 |
| this amendatory Act of the 94th General Assembly to receive | 19 |
| the records in electronic form as permitted by any statute, | 20 |
| regulation, or other rule of law. | 21 |
| (6) Oral communications. An oral communication or a | 22 |
| recording of an oral communication shall not qualify as an | 23 |
| electronic record for purposes of this subsection (c), | 24 |
| except as otherwise provided under applicable law.
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| (Source: P.A. 94-458, eff. 8-4-05.)
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| Section 99. Effective date. This Act takes effect upon | 27 |
| becoming law.
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