Illinois General Assembly - Full Text of HB2880
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Full Text of HB2880  102nd General Assembly




State of Illinois
2021 and 2022


Introduced 2/19/2021, by Rep. Deanne M. Mazzochi


815 ILCS 530/22 new

    Amends the Personal Information Protection Act. Provides that individuals and entities have intellectual property rights in their digital identity assets. Provides for the payment of royalties to individuals and entities for access, for the purpose of commercial advertising, to their digital assets. Authorizes civil actions for actual damages and statutory damages. Limits liability of State and local government. Defines terms.

LRB102 13250 JLS 18594 b





HB2880LRB102 13250 JLS 18594 b

1    AN ACT concerning business.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 5. The Personal Information Protection Act is
5amended by adding Section 22 as follows:
6    (815 ILCS 530/22 new)
7    Sec. 22. Digital Identity Assets and Royalties.
8    (a) This Section may be referred to as the Digital
9Identity Assets and Royalties Act or the DIARies Law.
10    (b) Findings.
11        (1) There is a considerable amount of information
12    about an individual that renders that individual unique.
13    This includes, but is not limited to, information
14    involving one's family, partner and social relationships,
15    education, medical history, personal tastes, preferences,
16    travel history, associations, and interests.
17        (2) In an earlier age, information about an individual
18    would have been known to a personal diary and to a
19    comparatively limited few relative to the rest of the
20    population. The information would have been recorded in
21    paper documents that could not readily be accessed without
22    the author's knowledge. The process of creating a
23    "picture" of someone's life, including for advertising



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1    purposes, would have involved considerable time, laborious
2    efforts, and individual effort to cultivate this
3    information involving knowledge and networks.
4        (3) In the digital age, participation in modern life
5    and devices requires an individual to surrender, often
6    without the person's active, knowledgeable, and fully
7    willing consent, detailed information about an
8    individual's life. "Consent" is given in the form of
9    adhesion contracts, where the individual is powerless to
10    negotiate and take action to protect personal privacy
11    interests. Particularly where the party demanding consent
12    has its own disproportionate market power, such as online
13    search engines, social media companies, or payment
14    processors, to not participate is to itself deny
15    participation in modern life, or the public square. It
16    similarly provides disproportionate power to demand
17    adherence to their terms at risk of "deplatforming".
18        (4) Thus, access to a person's individualized digital
19    "footprint", in an age where data collection and storage
20    can be of virtually unlimited size, scope, and scale, by
21    use of computer algorithms and machine learning, and
22    digital computing technologies that allow advertisers to
23    record and track highly granular, individualized
24    information, has considerably changed the dynamics that
25    ordinarily worked to more generally protect an
26    individual's personal privacy from access, intrusion, or



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1    abuse of informational power by unknown third parties.
2        (5) The General Assembly finds that, just as State
3    laws have been put in place to protect the value of
4    intangible assets such as goodwill, brand recognition,
5    trademarks, trade secrets, and the like, it is also
6    necessary for states to protect an individual's
7    intellectual property rights to their digital identity
8    assets.
9        (6) The General Assembly further finds that, in view
10    of the unrelenting ability of digital computing power to
11    gather, process, and store data and to target persons or
12    entities at will, individuals, even if efforts are made to
13    assemble them together in a class action lawsuit, will
14    have difficulty assembling the resources to combat
15    unwanted or unauthorized access to the details of each
16    individual's life and to protect their data and lived
17    experiences from intrusion.
18        (7) The General Assembly further finds that current
19    government efforts to ensure enforcement of abusive powers
20    through the public sector legal process is slow,
21    inefficient, and insufficient to provide individuals with
22    adequate relief.
23        (8) Thus, the General Assembly finds that both
24    statutory damages and a royalty system is necessary to
25    protect an individual's digital identity and assets.
26    (c) An individual or entity that is a lawful resident of



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1the State of Illinois for a period of at least 30 days is
2covered by this Act.
3    (d) Individuals and entities have an intellectual property
4right to exclusively make, use, or sell their digital assets.
5"Digital assets" include, but are not limited to, information
6accumulated regarding an individual's or entity's personal
7information, which includes, but is not limited to, the
8individual's or entity's family lists, friends lists,
9associates lists, relationship histories, customer lists,
10writings, photographs, personal interests, personal history,
11educational history, employment history, medical history
12(including RNA and DNA profiles and genetic history), purchase
13history, voter history, and the like. The concept of a digital
14asset exclusive to an individual or entity should be construed
15broadly to encompass any information that could have
16commercial value to a third-party data mining or advertising
17company for purposes of creating a digital identity for that
18individual or entity.
19    (e) After December 31, 2022, any access of an individual's
20digital assets for purposes of commercial advertising to that
21individual requires the digital search engine or advertising
22platform that is accessing the individual's device to pay the
23individual a royalty for access to that device. Unless the
24individual sets a higher royalty threshold, which amount may
25not to exceed $1 per advertisement per day for passive
26advertisements, for his or her device, the presumptive royalty



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1shall be $0.01 per advertisement displayed. These amounts
2shall be re-indexed and adjusted to account for inflation or
3deflation on January 1, 2030, and every 10 years thereafter.
4    (f) Any access of an individual's or entity's digital
5assets by a third party that is seeking to gather information
6from the individual or entity for purposes of database
7collection, without the express written consent of an
8individual, is a presumptive infringement on an individual's
9or entity's digital assets. In the event of such infringement:
10        (1) The affected individual or entity is entitled to
11    recover (A) the actual damages suffered by the individual
12    or entity as a result of the continued infringement of the
13    individual's or entity's intellectual property right and
14    any profits of the infringer that are attributable to the
15    infringement from the breach and (B) statutory damages in
16    the amount of $3,000 per year per breach for a period of 5
17    years.
18        (2) The burden of proof is on the owner of the digital
19    assets to present evidence only of the infringer's gross
20    profits. The infringer is required to prove his or her
21    deductible expenses and elements of profit not
22    attributable to factors associated with the breach and
23    infringement of the digital assets or privacy rights.
24        (3) It is a separate act of unfair competition for a
25    third-party platform that has accessed digital assets of
26    an individual or entity to threaten to or actually



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1    deplatform an individual or entity, absent notice and a
2    one-year period within which to transition to another
3    third-party platform site. If no other comparable
4    third-party platform sites are available, the third-party
5    platform shall continue to host the individual or entity
6    on the same terms offered to comparable individuals or
7    entities.
8        (4) If the perpetrator of an unauthorized acquisition
9    cannot be found, any entity holding or transmitting the
10    breached digital asset may be responsible for such
11    liability.
12        (5) Nothing in this Section may be construed as
13    imposing liability on a unit of State or local government
14    that is required or otherwise permitted by law to collect,
15    record, or access data of a personal nature in accordance
16    with carrying out its ordinary governmental functions,
17    unless such unit of State or local government
18    intentionally, or with gross negligence, allows its
19    databases holding information about individuals or
20    entities to be breached to the damage and harm of an
21    individual or entity.
22    (g) Interactive computer services civil action.
23        (1) As used in this Section:
24            (A) "Deplatform" means efforts by an interactive
25        computer servicer, or employees thereof, to restrict,
26        censor, suppress, shadowban, modify computer



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1        algorithms, or otherwise prohibit access to the
2        Internet, educational resources, or a social media
3        site.
4            (B) "Interactive computer service" means any
5        information service, system, or access software
6        provider that provides or enables computer access by
7        multiple users to a computer server, including a
8        computer server that provides access to the Internet,
9        or that is offered by libraries or educational
10        institutions, that has claimed immunity from civil
11        liability under federal law, that does not call itself
12        a publisher, or that has taken the position in the
13        public record that it is not a publisher, and has over
14        1,000,000 users.
15            (C) "Social media site" means a website through
16        which users are able to share and generate content and
17        find and connect with other users of common interests.
18        (2) If an interactive computer service seeks to
19    deplatform an individual or entity that is a legal
20    resident of this State at the time the deplatforming
21    activity occurs and had or held digital assets with the
22    interactive computer service or had or held digital assets
23    accessed by the interactive computer service, then the
24    individual or entity may bring an action for civil damages
25    in the circuit court in the county where the individual
26    being deplatformed resides or in a jurisdiction where an



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1    individual who reasonably would have otherwise received
2    the writing, speech, or publication of the deplatformed
3    individual or entity resides. Attorney's fees shall be
4    awarded to a prevailing plaintiff.
5        (3) It is an affirmative defense by the interactive
6    computer service that the restricted access was reasonable
7    because:
8            (A) The deplatformed writing, speech, or
9        publication was due to a good faith, objectively
10        reasonable belief that the deplatformed material was
11        obscene, lewd, lascivious, filthy, or excessively
12        violent in violation of law; or, if permitted, would
13        have violated State or federal law.
14            (B) The interactive computer service is a
15        publisher.