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8711.03 Definitions. In this chapter:
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9(1) "Account" means an arrangement under a terms of service agreement in
10which a custodian carries, maintains, processes, receives, or stores a user's digital
11property or provides goods or services to the user.
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12(2) "Agent" means a person granted authority to act under a durable or
13nondurable power of attorney.
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14(3) "Carries" means engages in the transmission of an electronic
15communication.
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16(4) "Catalogue of electronic communications" means information that
17identifies each person with which a user has had an electronic communication, the
18time and date of the communication, and the electronic address of the person.
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19(5) "Conservator" means a person appointed under s. 54.76 to manage the
20estate of a living individual.
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21(6) "Content of an electronic communication" means information concerning
22the substance or meaning of a communication that satisfies all of the following:
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(a) The information was sent or received by a user.
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1(b) The information is electronically stored by a custodian that provides an
2electronic communication service to the public or is carried or maintained by a
3custodian that provides a remote computing service to the public.
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(c) The information is not readily accessible to the public.
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5(7) "Court" means the circuit court having jurisdiction over a matter related
6to this chapter.
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7(8) "Custodian" means a person that carries, maintains, processes, receives, or
8stores a user's digital property.
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9(9) "Designated recipient" means a person chosen by the user using an online
10tool to administer the user's digital property.
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11(10) "Digital property" means an electronic record in which a person has a right
12or interest. "Digital property" does not include underlying property or an underlying
13liability unless the property or liability is itself an electronic record.
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14(11) "Electronic" means relating to technology having electrical, digital,
15magnetic, wireless, optical, electromagnetic, or similar capabilities.
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16(12) "Electronic communication" has the meaning given in
18 USC 2510 (12).
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17(13) "Electronic communication service" means a custodian that provides to a
18user the ability to send or receive an electronic communication.
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19(14) "Fiduciary" means an original, additional, or successor personal
20representative, conservator, guardian, agent, or trustee.
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21(15) "Governing instrument" has the meaning given in s. 854.01 (2).
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22(16) "Guardian" means a person appointed under s. 54.10.
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23(17) "Information" means data, text, images, videos, sounds, codes, computer
24programs, software, databases, or the like.
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1(18) "Online tool" means a setting provided by a custodian that allows the user,
2by an agreement between the custodian and user that is distinct from the user's
3assent to the terms of service, to provide directions for disclosure or nondisclosure
4of digital property to a designated recipient.
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5(19) "Person" means an individual, estate, business or nonprofit entity, public
6corporation, government or governmental subdivision, agency, or instrumentality, or
7other legal entity.
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8(20) "Personal representative" has the meaning given in s. 851.23, but also
9includes a special administrator and any person who, under the laws of this state
10other than this chapter, performs functions substantially similar to a personal
11representative, as defined in s. 851.23.
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12(21) "Power of attorney" means an instrument that grants an agent authority
13to act in the place of a principal.
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14(22) "Principal" means an individual who grants authority to an agent in a
15power of attorney.
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16(23) "Protected person" means all of the following:
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1. An individual for whom a guardian is appointed.
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2. An individual for whom a conservator is appointed.
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19(24) "Record" means information that is inscribed on a tangible medium or that
20is stored in an electronic or other medium and is retrievable in perceivable form.
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21(25) "Remote computing service" means a custodian that provides to a user
22computer processing services or the storage of digital property by means of an
23electronic communications system, as defined in
18 USC 2510 (14).
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24(26) "Terms of service agreement" means an agreement that controls the
25relationship between a user and a custodian.
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1(27) "Trustee" means a person with legal title to an asset under an agreement
2or declaration that creates a beneficial interest in another. "Trustee" includes an
3original, additional, and successor trustee, and a cotrustee.
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4(28) "User" means a person that has an account with a custodian.
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5(29) "Will" includes a codicil and any document incorporated by reference in a
6testamentary document under s. 853.32 (1) or (2).
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7711.04 Priorities; user directions for disclosure of digital property.. (1) 8A user may use an online tool to direct the custodian to disclose to a designated
9recipient or not to disclose some or all of the user's digital property, including the
10content of electronic communications. If the online tool allows the user to modify or
11delete a direction at all times, a direction regarding disclosure using an online tool
12overrides a contrary direction by the user in a will, trust, power of attorney, or any
13other governing instrument.
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14(2) If a user has not used an online tool to give direction under sub. (1), or if the
15custodian has not provided an online tool, the user may allow or prohibit disclosure
16to a fiduciary of some or all of the user's digital property, including the content of
17electronic communications sent or received by the user, in a will, trust, power of
18attorney, or any other governing instrument.
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19(3) A user's direction under sub. (1) or (2) overrides a contrary provision in a
20terms of service agreement that does not require the user to act affirmatively and
21distinctly from the user's assent to the terms of service.
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22711.05 Disclosure of digital property; personal representative of a
23deceased user. (1) Digital property other than content of electronic
24communications. Unless a user prohibited disclosure of digital property or the court
25directs otherwise, a custodian shall disclose to the personal representative of the
1deceased user's estate a catalogue of electronic communications sent or received by
2the deceased user and digital property, other than the content of electronic
3communications sent or received by the deceased user, in which the deceased user's
4estate has a right or interest, if the personal representative gives the custodian all
5of the following:
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(a) A written request for disclosure in physical or electronic form.
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(b) A certified copy of the death certificate of the user.
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(c) One of the following to establish the personal representative's authority over
9the deceased user's digital property:
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1. A certified copy of the letters of appointment of the personal representative
11or special administrator.
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2. A summary proceeding or other court order.
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3. A transfer by affidavit.
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(d) If requested by the custodian, any of the following:
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1. A number, username, address, or other unique subscriber or account
16identifier assigned by the custodian to identify the user's account.
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2. Evidence linking the account to the user.
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3. An affidavit stating that disclosure of the user's digital property is
19reasonably necessary for administration of the estate.
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4. A court order that includes any of the following findings:
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a. The user had a specific account with the custodian, identifiable by the
22information specified in subd. 1.
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b. The disclosure of the user's digital property is reasonably necessary for
24administration of the estate.
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1(2) Disclosure of content of electronic communications; deceased user. If
2a deceased user consented or a court directs disclosure of the contents of electronic
3communications of a deceased user, the custodian shall disclose to the personal
4representative of the deceased user's estate the content of an electronic
5communication sent or received by the user, in which the deceased user's estate has
6a right or interest, if the personal representative gives the custodian all of the
7following:
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(a) The items described in sub. (1) (a) to (c).
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(b) Unless the user provided direction using an online tool, a copy of the user's
10will, certification of trust under s. 701.1013, or other governing instrument,
11evidencing the deceased user's consent to disclosure of the content of electronic
12communications.
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(c) If requested by the custodian, any of the following:
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1. A number, username, address, or other unique subscriber or account
15identifier assigned by the custodian to identify the user's account.
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2. Evidence linking the account to the user.
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3. A court order that includes any of the following findings:
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a. The user had a specific account with the custodian that is identifiable by the
19information specified in subd. 1.
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b. The disclosure of the content of electronic communications of the user does
21not violate
18 USC 2701 et seq.,
47 USC 222, or other applicable law.
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c. Unless the user provided direction using an online tool, the user consented
23to disclosure of the content of electronic communications.
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d. The disclosure of the content of electronic communications of the user is
25reasonably necessary for administration of the estate.
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1711.06 Disclosure of digital property; agent under a power of attorney.
2(1) Disclosure of digital property other than content of electronic
3communications; principal. Unless otherwise ordered by the court, directed by the
4principal, or provided in a power of attorney, a custodian shall disclose to an agent
5with specific authority over the principal's digital property or general authority to
6act on behalf of a principal a catalogue of electronic communications sent or received
7by the principal and digital property, other than the content of electronic
8communications, in which the principal has a right or interest, if the agent gives the
9custodian all of the following:
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(a) A written request for disclosure in physical or electronic form.
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(b) An original or a copy of the power of attorney that gives the agent specific
12authority over digital property or general authority to act on behalf of the principal.
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(c) A certification by the agent, under penalty of perjury, that the power of
14attorney is in effect.
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(d) If requested by the custodian, any of the following:
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1. A number, username, address, or other unique subscriber or account
17identifier assigned by the custodian to identify the principal's account.
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2. Evidence linking the account to the principal.
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19(2) Disclosure of content of electronic communications; principal. To the
20extent a power of attorney expressly grants an agent authority over the content of
21electronic communications sent or received by the principal and unless directed
22otherwise by the principal or the court, a custodian shall disclose to the agent the
23content of electronic communications if the agent gives the custodian all of the
24following:
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(a) The items described in sub. (1) (a), (c), and (d).
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1(b) An original or a copy of the power of attorney that expressly grants the agent
2authority over the content of electronic communications of the principal.
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3711.07 Disclosure of digital property held in trust. (1) Disclosure of
4digital property held in trust; trustee is original user. Unless otherwise ordered
5by the court or provided in a trust, a custodian shall disclose to a trustee who is an
6original user of an account any digital property of the account that is held in trust,
7including a catalogue of electronic communications of the trustee and the content of
8electronic communications.
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9(2) Disclosure of digital property other than content of electronic
10communications; trustee is not original user. Unless otherwise ordered by the
11court, directed by the user, or provided in a trust, a custodian shall disclose, to a
12trustee that is not an original user of an account, a catalogue of electronic
13communications sent or received by an original or successor user and stored, carried,
14or maintained by the custodian in an account of the trust and any digital property,
15other than the content of electronic communications, in which the trust has a right
16or interest, if the trustee gives the custodian all of the following:
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(a) A written request for disclosure in physical or electronic form.
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(b) A certification of the trust under s. 701.1013.
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(c) A certification by the trustee, under penalty of perjury, that the trust exists
20and the trustee is a currently acting trustee of the trust.
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(d) If requested by the custodian, any of the following:
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1. A number, username, address, or other unique subscriber or account
23identifier assigned by the custodian to identify the trust's account.
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2. Evidence linking the account to the trust.
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1(3) Disclosure of contents of electronic communications held in trust;
2trustee is not original user. Unless otherwise ordered by the court, directed by the
3user, or provided in a trust, a custodian shall disclose to a trustee that is not an
4original user of an account the content of an electronic communication sent or
5received by an original or successor user and carried, maintained, processed,
6received, or stored by the custodian in the trust's account, in which the trust has a
7right or interest, if the trustee gives the custodian all of the following:
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(a) The items described in sub. (2) (a), (c), and (d).
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(b) A certification of the trust under s. 701.1013 that includes an original or
10successor user's consent to disclosure of the content of electronic communications to
11the trustee.
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12711.08 Disclosure of digital property; conservator or guardian of
13protected person. (1) After an opportunity for a hearing under s. 54.10, the court
14may grant a guardian access to the digital property of a protected person.
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15(2) After an opportunity for a hearing under s. 54.76, the court may grant a
16conservator access to the digital property of a protected person.
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17(3) Unless otherwise ordered by the court or directed by the user, a custodian
18shall disclose to a guardian or custodian the catalogue of electronic communications
19sent or received by a protected person and any digital property, other than the
20content of electronic communications, in which the protected person has a right or
21interest if the guardian or conservator gives the custodian all of the following:
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(a) A written request for disclosure in physical or electronic form.
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(b) A certified copy of the court order that gives the guardian or conservator
24authority over the protected person's digital property.