Bill Text: IL HB4648 | 2015-2016 | 99th General Assembly | Chaptered

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Bill Title: Creates the Revised Uniform Fiduciary Access to Digital Assets Act (2015). Defines terms. Provides procedures and requirements for the access and control by guardians, executors, agents, and other fiduciaries of the digital assets of persons who are deceased, under a legal disability, or subject to the terms of a trust. Adds provisions concerning: applicability; user direction for disclosure of digital assets; terms-of-service agreements; fiduciary duty and authority; custodian compliance and immunity; the Act's relation to federal laws governing electronic signatures; and severability. Makes corresponding changes in the Criminal Code of 2012.

Spectrum: Bipartisan Bill

Status: (Passed) 2016-08-12 - Public Act . . . . . . . . . 99-0775 [HB4648 Detail]

Download: Illinois-2015-HB4648-Chaptered.html

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Public Act 099-0775
HB4648 Enrolled LRB099 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.