Bill Text: IL SB1376 | 2015-2016 | 99th General Assembly | Engrossed

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Bill Title: 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.

Spectrum: Slight Partisan Bill (Democrat 12-4)

Status: (Engrossed - Dead) 2015-05-31 - Rule 19(a) / Re-referred to Rules Committee [SB1376 Detail]

Download: Illinois-2015-SB1376-Engrossed.html

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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

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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.

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(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

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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

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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.

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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

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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

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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.

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(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

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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,

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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

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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, except for willful and
wanton misconduct, 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 12.1. Conflict with federal law. Nothing contained
in this Act is intended to supersede applicable federal law
including, but not limited to, the Electronic Communications
Privacy Act. In the event any provision of this Act is
inconsistent with applicable federal law, the federal law shall

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prevail, but only to the extent of such inconsistency.
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

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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

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(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

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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

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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).