Bill Text: IL HB2880 | 2021-2022 | 102nd General Assembly | Introduced

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Bill Title: 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.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2021-03-27 - House Committee Amendment No. 1 Rule 19(c) / Re-referred to Rules Committee [HB2880 Detail]

Download: Illinois-2021-HB2880-Introduced.html

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102ND GENERAL ASSEMBLY State of Illinois 2021 and 2022 HB2880 Introduced , by Rep. Deanne M. Mazzochi SYNOPSIS AS INTRODUCED:
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.
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A BILL FOR
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AN ACT concerning business.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Personal Information Protection Act is
amended by adding Section 22 as follows:
(815 ILCS 530/22 new)
Sec. 22. Digital Identity Assets and Royalties.
(a) This Section may be referred to as the Digital
Identity Assets and Royalties Act or the DIARies Law.
(b) Findings.
(1) There is a considerable amount of information
about an individual that renders that individual unique.
This includes, but is not limited to, information
involving one's family, partner and social relationships,
education, medical history, personal tastes, preferences,
travel history, associations, and interests.
(2) In an earlier age, information about an individual
would have been known to a personal diary and to a
comparatively limited few relative to the rest of the
population. The information would have been recorded in
paper documents that could not readily be accessed without
the author's knowledge. The process of creating a
"picture" of someone's life, including for advertising

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

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

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

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

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

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

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