SB2363 94TH GENERAL ASSEMBLY

LRB094 17103 MKM 52389 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
SB2363

Introduced 1/18/2006, by Sen. John J. Cullerton

SYNOPSIS AS INTRODUCED:

205 ILCS 705/5
205 ILCS 705/10

Amends the Financial Institutions Electronic Documents and Digital Signature Act. For purposes of the Act, defines "financial institution" to include subsidiaries and affiliates of banks, savings and loan associations, savings banks, and credit unions. If a financial institution is required by law to provide or make available certain information in writing to consumers, provides that the use of an electronic record to provide or make available that information satisfies the writing requirement if the consumer consents and if certain notices are provided. Provides that oral communication or recording of oral communication does not qualify as an electronic record. Contains other provisions concerning the rights of consumers, the effect of failure to obtain electronic consent or confirmation of consent, the effect of withdrawal of consent, and prior consent. Effective immediately.

A BILL FOR

AN ACT concerning regulation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Financial Institutions Electronic Documents and Digital Signature Act is amended by changing Sections 5 and 10 as follows:

(205 ILCS 705/5)

Sec. 5. Definitions. As used in this Act:

"Digital signature" means an encrypted electronic identifier, created by computer, intended by the party using it to have the same force and effect as the use of a manual signature.

"Financial institution" means a bank, a savings and loan association, a savings bank, or a credit union or any subsidiary or affiliate of a bank, savings and loan association, savings banks, or credit union.

"Substitute check" means a paper reproduction of an original check, as defined in the Check Clearing for the 21st Century Act (12 U.S.C. 5001, et seq.), as amended from time to time, and the rules promulgated thereunder.

(Source: P.A. 94-458, eff. 8-4-05.)

(205 ILCS 705/10)

Sec. 10. Electronic documents; digital signatures; electronic notices.

(a) Electronic documents. If in the regular course of business, a financial institution possesses, records, or generates any document, representation, image, substitute check, reproduction, or combination thereof, of any agreement, transaction, act, occurrence, or event by any electronic or computer-generated process that accurately reproduces, comprises, or records the agreement, transaction, act, occurrence, or event, the recording, comprising, or reproduction shall have the same force and effect under the laws of this State as one comprised, recorded, or created on paper or other tangible form by writing, typing, printing, or similar means.

(b) Digital signatures. In any communication, acknowledgement, agreement, or contract between a financial institution and its customer, in which a signature is required or used, any party to the communication, acknowledgement, agreement, or contract may affix a signature by use of a digital signature, and the digital signature, when lawfully used by the person whose signature it purports to be, shall have the same force and effect as the use of a manual signature if it is unique to the person using it, is capable of verification, is under the sole control of the person using it, and is linked to data in such a manner that if the data are changed, the digital signature is invalidated. Nothing in this Section shall require any financial institution or customer to use or permit the use of a digital signature.

(c) Electronic notices.

(1) Consent to electronic records. If a statute, regulation, or other rule of law requires that information relating to a transaction or transactions in or affecting intrastate commerce in this State be provided or made available by a financial institution to a consumer in writing, the use of an electronic record to provide or make available that information satisfies the requirement that the information be in writing if:

(A) the consumer has affirmatively consented to the use of an electronic record to provide or make available that information and has not withdrawn consent;

(B) the consumer, prior to consenting, is provided with a clear and conspicuous statement:

(i) informing the consumer of:

(I) any right or option of the consumer to have the record provided or made available on paper or in nonelectronic form, and

(II) the right of the consumer to withdraw the consent to have the record provided or made available in an electronic form and of any conditions, consequences (which may include termination of the parties' relationship), or fees in the event of a withdrawal of consent;

(ii) informing the consumer of whether the consent applies:

(I) only to the particular transaction that gave rise to the obligation to provide the record, or

(II) to identified categories of records that may be provided or made available during the course of the parties' relationship;

(iii) describing the procedures the consumer must use to withdraw consent, as provided in clause (i), and to update information needed to contact the consumer electronically; and

(iv) informing the consumer:

(I) how, after the consent, the consumer may, upon request, obtain a paper copy of an electronic record, and

(II) whether any fee will be charged for a paper copy;

(C) the consumer:

(i) prior to consenting, is provided with a statement of the hardware and software requirements for access to and retention of the electronic records; and

(ii) consents electronically, or confirms his or her consent electronically, in a manner that reasonably demonstrates that the consumer can access information in the electronic form that will be used to provide the information that is the subject of the consent; and

(D) after the consent of a consumer in accordance with subparagraph (A), if a change in the hardware or software requirements needed to access or retain electronic records creates a material risk that the consumer will not be able to access or retain a subsequent electronic record that was the subject of the consent, the person providing the electronic record:

(i) provides the consumer with a statement of:

(I) the revised hardware and software requirements for access to and retention of the electronic records, and

(II) the right to withdraw consent without the imposition of any fees for the withdrawal and without the imposition of any condition or consequence that was not disclosed under subparagraph (B)(i); and

(ii) again complies with subparagraph (C).

(2) Other rights.

(A) Preservation of consumer protections. Nothing in this subsection (c) affects the content or timing of any disclosure or other record required to be provided or made available to any consumer under any statute, regulation, or other rule of law.

(B) Verification or acknowledgment. If a law that was enacted prior to this amendatory Act of the 94th General Assembly expressly requires a record to be provided or made available by a specified method that requires verification or acknowledgment of receipt, the record may be provided or made available electronically only if the method used provides the required verification or acknowledgment of receipt.

(3) Effect of failure to obtain electronic consent or confirmation of consent. The legal effectiveness, validity, or enforceability of any contract executed by a consumer shall not be denied solely because of the failure to obtain electronic consent or confirmation of consent by that consumer in accordance with paragraph (1)(C)(ii).

(4) Prospective effect. Withdrawal of consent by a consumer shall not affect the legal effectiveness, validity, or enforceability of electronic records provided or made available to that consumer in accordance with paragraph (1) prior to implementation of the consumer's withdrawal of consent. A consumer's withdrawal of consent shall be effective within a reasonable period of time after receipt of the withdrawal by the provider of the record. Failure to comply with paragraph (1)(D) may, at the election of the consumer, be treated as a withdrawal of consent for purposes of this paragraph.

(5) Prior consent. This subsection does not apply to any records that are provided or made available to a consumer who has consented prior to the effective date of this amendatory Act of the 94th General Assembly to receive the records in electronic form as permitted by any statute, regulation, or other rule of law.

(6) Oral communications. An oral communication or a recording of an oral communication shall not qualify as an electronic record for purposes of this subsection (c), except as otherwise provided under applicable law.

(Source: P.A. 94-458, eff. 8-4-05.)

Section 99. Effective date. This Act takes effect upon becoming law.