711.09(1)(1)When disclosing digital property of a user under this chapter, the custodian may in its sole discretion provide a fiduciary or designated recipient with any of the following:
711.09(1)(a) (a) Full access to the user's account.
711.09(1)(b) (b) Partial access to the user's account that is sufficient to perform the tasks with which the fiduciary or designated recipient is charged.
711.09(1)(c) (c) A copy in a record of any digital property that the user could have accessed if the user were alive, had full capacity, and had full access to the account on the date on which the custodian received the request for disclosure.
711.09(2) (2)A custodian may assess a reasonable administrative charge to a fiduciary or designated recipient for the cost of disclosing digital property under this chapter.
711.09(3) (3)A custodian is not required to disclose under this chapter digital property deleted by the user.
711.09(4) (4)If a user directs or a fiduciary or designated recipient requests a custodian to disclose under this chapter some, but not all, of the user's digital property, the custodian is not required to disclose the digital property if segregation of the digital property would impose an undue burden on the custodian. If the custodian refuses to disclose digital property because the custodian believes the segregation of the digital property imposes an undue burden, the custodian or fiduciary may seek an order from the court to disclose any of the following:
711.09(4)(a) (a) To the fiduciary or designated recipient, a subset of the user's digital property that is limited by date.
711.09(4)(b) (b) To the fiduciary or designated recipient, all of the user's digital property.
711.09(4)(c) (c) None of the user's digital property.
711.09(4)(d) (d) To the court for review in camera, all of the user's digital property.
711.09 History History: 2015 a. 300.
711.10 711.10 Custodian compliance and immunity.
711.10(1)(1)Not later than 60 days after receipt of the information required under ss. 711.05 to 711.08 or 711.12 (7) or an online tool, a custodian shall comply with a request under this chapter from a fiduciary or designated recipient to disclose digital property or terminate an account. If the custodian fails to comply, the fiduciary or designated recipient may apply to the court for an order directing the custodian to comply with the request.
711.10(2) (2)A court shall include in an order directing a custodian to comply with a request made under this chapter a finding that compliance with the request does not violate 18 USC 2702.
711.10(3) (3)A custodian may notify the user that a request for disclosure of digital property or to terminate an account was made under this chapter.
711.10(4) (4)A custodian may deny a request under this chapter from a fiduciary or designated recipient for disclosure of digital property or to terminate an account if the custodian is aware of any lawful access to the account after the receipt of the fiduciary's request.
711.10(5) (5)This chapter does not limit a custodian's ability to obtain or to require a fiduciary or designated recipient requesting disclosure or termination under this chapter to obtain a court order that does all of the following:
711.10(5)(a) (a) Specifies that an account belongs to the protected person or principal.
711.10(5)(b) (b) Specifies that there is sufficient consent from the protected person or principal to support the requested disclosure.
711.10(5)(c) (c) Contains any findings required by law other than this chapter.
711.10(6) (6)A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good faith in compliance with this chapter.
711.10 History History: 2015 a. 300.
711.11 711.11 Terms of service agreement.
711.11(1)(1)This chapter does not change or impair the rights of a custodian or a user under a terms of service agreement to access and use digital property of the user.
711.11(2) (2)This chapter does not give a fiduciary or designated recipient rights other than the rights held by the user for whom, or for whose estate, the fiduciary or designated recipient acts or represents.
711.11(3) (3)A fiduciary's or designated recipient's access to digital property may be modified or eliminated by any of the following:
711.11(3)(a) (a) The user.
711.11(3)(b) (b) Federal law.
711.11(3)(c) (c) A terms of service agreement if the user has not provided direction under s. 711.04.
711.11 History History: 2015 a. 300.
711.12 711.12 Fiduciary duty and authority.
711.12(1)(1)The legal duties imposed on a fiduciary with the authority to manage tangible property apply to a fiduciary's management of digital property.
711.12(2) (2)
711.12(2)(a)(a) A fiduciary's or designated recipient's authority with respect to a user's digital property may not be used to impersonate the user and is subject to all of the following:
711.12(2)(a)1. 1. Except as otherwise provided in s. 711.04, the applicable terms of service.
711.12(2)(a)2. 2. Other applicable law, including copyright law.
711.12(2)(b) (b) A fiduciary's authority is limited by the scope of the fiduciary's duties.
711.12(3) (3)A fiduciary with authority over the property of a decedent, protected person, principal, or settlor has the right to access any digital property in which the decedent, protected person, principal, or settlor had a right or interest and that is not held by a custodian or subject to a terms of service agreement.
711.12(4) (4)A fiduciary acting within the scope of the fiduciary's duties is an authorized user of the digital property of the decedent, protected person, principal, or settlor for the purpose of applicable computer fraud and unauthorized computer access laws, including s. 943.70.
711.12(5) (5)
711.12(5)(a)(a) A fiduciary with authority over the tangible personal property of a decedent, protected person, principal, or settlor has the right to access the tangible personal property and any digital property stored in the tangible personal property.
711.12(5)(b) (b) A fiduciary with authority over the tangible personal property of a decedent, protected person, principal, or settlor is an authorized user of digital property stored in the tangible personal property for the purpose of computer fraud and unauthorized computer access laws, including s. 943.70.
711.12(6) (6)A custodian may disclose information in a user's account to a fiduciary of the user when the information is required to terminate an account used to access digital property licensed to the user.
711.12(7) (7)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 all of the following:
711.12(7)(a) (a) If the user is deceased, a certified copy of the death record of the user.
711.12(7)(b) (b) Any of the following that grants the fiduciary authority over the user's account:
711.12(7)(b)1. 1. A certified copy of the letters of appointment of a personal representative.
711.12(7)(b)2. 2. A certified copy of the letters of special administration.
711.12(7)(b)3. 3. A certified copy of a summary proceeding order under s. 867.01 or 867.02.
711.12(7)(b)3m. 3m. An original or copy of an affidavit under s. 867.03.
711.12(7)(b)4. 4. An original or copy of an application under s. 867.046.
711.12(7)(b)5. 5. An original or copy of a power of attorney and a certification by the agent that the power of attorney is in effect.
711.12(7)(b)6. 6. A certification of the trust under s. 701.1013.
711.12(7)(c) (c) If requested by the custodian, any of the following:
711.12(7)(c)1. 1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account.
711.12(7)(c)2. 2. Evidence linking the account to the user.
711.12(7)(c)3. 3. A finding by the court that the user had a specific account with the custodian, identifiable by the information specified in subd. 1.
711.12(8) (8)
711.12(8)(a)(a) A fiduciary has no duty to review any digital property of a decedent, settlor, principal, or protected person or to secure or preserve any digital property that is not in the possession of the fiduciary, unless any of the following applies:
711.12(8)(a)1. 1. The fiduciary has knowledge, or has reason to believe, that the decedent's estate, settlor's trust, principal, or protected person has digital property of economic value.
711.12(8)(a)2. 2. The fiduciary receives a written request from a beneficiary who has an interest in the digital property of the decedent's estate, settlor's trust, principal, or protected person.
711.12(8)(b) (b) A fiduciary's reasonable efforts to review, secure, or preserve digital property satisfy a duty to review, secure, or preserve digital property under par. (a).
711.12(8)(c) (c) If a fiduciary reviews, secures, or preserves a portion of the digital property of a decedent, settlor, principal, or protected person and the fiduciary does not have a duty to do so, the reviewing, securing, or preserving of a portion of digital property does not give rise to a duty to review, secure, or preserve the remaining portion of the digital property of the decedent, settlor, principal, or protected person.
711.12(8)(d) (d) Unless a fiduciary has a duty to review, secure, or preserve digital property under par. (a), a fiduciary is not liable for failing to review, secure, or preserve any digital property of a decedent, settlor, principal, or protected person.
711.12 History History: 2015 a. 300; 2017 a. 334.
711.13 711.13 Marital property classification of digital property. Chapter 766 governs the classification of digital property of a user who is married.
711.13 History History: 2015 a. 300.
711.14 711.14 Uniformity of application and construction. This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.
711.14 History History: 2015 a. 300.
711.15 711.15 Relation to Electronic Signatures in Global and National Commerce Act. This chapter modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, 15 USC 7001 et seq., but does not modify, limit, or supersede section 101 (c) of that act, 15 USC 7001 (c), or authorize electronic delivery of any of the notices described in section 103 (b) of that act, 15 USC 7003 (b).
711.15 History History: 2015 a. 300.
711.16 711.16 Applicability.
711.16(1)(1)This chapter applies to all of the following:
711.16(1)(a) (a) A fiduciary acting under a will or power of attorney executed before, on, or after April 1, 2016.
711.16(1)(b) (b) A personal representative acting for a decedent who died before, on, or after April 1, 2016.
711.16(1)(c) (c) A guardianship or conservatorship proceeding, whether pending in a court or commenced before, on, or after April 1, 2016.
711.16(1)(d) (d) A trustee acting under a trust created before, on, or after April 1, 2016.
711.16(2) (2)This chapter applies to a custodian only if the user resides in this state or resided in this state at the time of the user's death.
711.16(3) (3)This chapter does not apply to digital property of an employer used by an employee in the ordinary course of the employer's business.
711.16 History History: 2015 a. 300.
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2017-18 Wisconsin Statutes updated through 2019 Wis. Act 5 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on April 21, 2019. Published and certified under s. 35.18. Changes effective after June 1, 2019, are designated by NOTES. (Published 6-1-19)