January 13, 2016 - Introduced by Representatives R. Brooks, Sargent, Kahl,
Kremer, Goyke, Gannon, Pope, Kolste, Hutton, Sinicki, Murphy and
Genrich, cosponsored by Senators Roth,
Risser, Olsen and Miller. Referred
to Committee on Judiciary.
AB695,1,4
1An Act to amend 155.30 (3) (form) and 244.61 (form); and
to create 54.20 (2)
2(m), 112.12, 155.20 (9), 244.41 (1) (i), 244.43 (9m) and 701.0816 (28) of the
3statutes;
relating to: creating the Revised Uniform Fiduciary Access to Digital
4Assets Act.
Analysis by the Legislative Reference Bureau
This bill adopts the Revised Uniform Fiduciary Access to Digital Assets Act, as
approved and recommended by the National Conference of Commissioners on
Uniform State Laws in July 2015. The bill provides default provisions related to a
fiduciary's right to access digital assets. Under the bill, a digital asset is an electronic
record in which an individual has a right or interest. Examples of digital assets
include information stored on a computer or other digital device, content uploaded
onto a Web site, text messages, and rights in domain names or rights associated with
online games. A fiduciary is a personal representative, guardian, conservator, agent
under a power of attorney, or trustee.
Terms of service agreement
Under the bill, a terms of service agreement is an agreement that controls the
relationship between a user and a custodian. A custodian is a person that carries,
maintains, processes, receives, or stores a user's digital assets.
This bill does not change or impair the rights of a custodian or a user under a
terms of service agreement to access and use digital assets. Nor does the bill give a
fiduciary any other rights than the rights held by the user for whom the fiduciary acts
or represents.
Three-tiered priority system
This bill creates the following three-tiered system to address contrary
directions regarding disclosure of digital assets to a fiduciary:
1. This bill gives first priority to a direction made by a user in a will, trust, power
of attorney, or other governing instrument.
2. If the user does not provide a direction in a will, trust, power of attorney, or
other governing instrument, the bill gives priority to a direction provided in an online
tool. Under the bill, an online tool is an electronic service provided by the custodian,
separate from the general terms of service, that allows a user to provide directions
relating to disclosure of the user's digital assets to a third person. A designated
recipient is a person chosen by the user using an online tool to administer digital
assets.
3. Finally, if the user does not provide a direction in a will, trust, power of
attorney, or other governing instrument or using an online tool, direction in the terms
of service governing the digital assets apply to the disclosure of the digital assets to
a fiduciary. If the terms of service do not address fiduciary access, the default rules
provided in this bill apply.
The three-tiered system established in this bill deviates from the Revised
UFADAA. Under the Revised UFADAA, a direction given in an online tool is given
the highest priority, followed by a direction given in a will, trust, power of attorney,
or other record. The final tier is same under the bill and the Revised UFADAA.
Disclosure of content of electronic communications
An electronic communication is a specific type of digital asset that is subject to
the federal Electronic Communications Privacy Act. Under the ECPA, a custodian
may divulge the contents of an electronic communication only 1) to an addressee or
intended recipient of the communication or an agent of such addressee or intended
recipient or 2) with the lawful consent of the originator or an addressee or intended
recipient of such communication. A catalogue of electronic communications is
information that identifies with whom an electronic communication is, the electronic
address of that person, and the time and date of the communication. The catalogue
does not include the content of the electronic communication.
The bill sets forth the conditions under which a custodian must disclose the
content of electronic communications to each type of fiduciary. For example, a
custodian must disclose content of electronic communications to a personal
representative of a deceased user if the personal representative gives the custodian
a written request, specific documentation establishing the personal representative's
authority and, upon the custodian's request, a court order that finds that 1) the user
had an identifiable specific account with the digital custodian, 2) disclosure of the
content of the electronic communications of the user would not violate the ECPA or
other applicable law, 3) unless the user provided direction using an online tool, the
user consented to disclosure of the contents of electronic communications, and 4)
disclosure of the contents of electronic communications is necessary for the
administration of the user's estate.
Under the bill, a custodian must disclose content of electronic communication
to a trustee, agent under a power of attorney, guardian, or a conservator if the
trustee, agent, guardian, or conservator gives the guardian a written request,
specific documentation establishing the fiduciary's authority, and, upon the
custodian's request, specific information to identify the user's account. However, the
bill does not limit a custodian's ability to obtain or require a court order that specifies,
among other things, that there is sufficient consent from the user to support the
requested disclosure.
Access to digital assets other than content of electronic communications
The bill also sets forth the conditions under which a custodian must disclose
digitals assets other than content of electronic communications, including a
catalogue of electronic communications, to each type of fiduciary. A custodian must
disclose digital assets other than content of electronic communications to a personal
representative if the personal representative gives the custodian a written request,
specific documentation establishing the personal representative's authority, and, if
requested by the custodian, 1) certain information to identify the user's account, 2)
an affidavit from the personal representative that the disclosure is reasonably
necessary for the administration of the estate, or 3) a court order to identify the user's
account and that the disclosure is reasonably necessary for the administration of the
estate. Under the bill, a custodian must disclose digital assets other than content of
electronic communications to a trustee, agent under a power of attorney, guardian,
or conservator if the trustee, agent, guardian, or conservator gives the guardian a
written request, specific documentation establishing the fiduciary's authority, and,
upon the custodian's request, specific information to identify the user's account.
Disclosure of digital assets
Under the bill, a custodian may comply with a request to disclose digital assets
made by a fiduciary or a designated recipient by doing any of the following:
1. Providing full access to the user's account.
2. Providing partial access to the account that is sufficient to perform the tasks
with which the requester is charged.
3. Providing a copy of any digital assets that the user could have accessed on
the date the request was made.
The bill does not require a custodian to disclose a digital asset that has been
deleted by a user. Additionally, if a request is made for some, but not all, of a user's
digital assets and the custodian determines that segregating the requested digital
assets imposes an undue burden on the custodian, the custodian is not required to
comply with the request. If a custodian refuses to comply with a request because
segregation of the digital assets imposes an undue burden, the custodian or the
requester may seek a court order for the custodian to disclose any of the following:
1. A subset of the digital assets, limited by date.
2. All of the digital assets to the requester.
3. None of the digital assets.
4. All of the digital assets to the court for review.
The bill allows a custodian to charge a reasonable administrative charge for
disclosing digital assets.
Fiduciary duties and powers
Under the bill, all fiduciary duties that apply to tangible personal property
apply to digital assets, including the duty of care, the duty of loyalty, and the duty
of confidentiality. The bill also affirms that a fiduciary acting within the scope of the
fiduciary's duties is an authorized user for purposes of any unauthorized computer
access law.
Under the bill, a fiduciary with authority over tangible personal property of a
decedent, protected person, principal, or settlor has the right to access the property
and any digital asset stored in the tangible personal property and is an authorized
user for purposes of any unauthorized computer access law. The bill also allows a
fiduciary to request a custodian to terminate a user's account and describes the
documentation that must accompany such a request.
Custodian compliance and immunity
Under the bill, a custodian must comply with a request from a fiduciary or a
designated recipient to disclose a digital asset no later than 60 days after receiving
the request. If the custodian does not comply with the request, the requester may
seek a court order for compliance. The bill provides that a custodian is immune from
liability for acts or omission made in good faith to comply with requirements created
in this bill.
Applicability
This bill applies to a digital custodian only if the user resides in this state or
resided in this state at the time of the user's death. Additionally, the bill does not
apply to a digital asset of an employer used by an employee.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB695,1
1Section
1. 54.20 (2) (m) of the statutes is created to read:
AB695,4,22
54.20
(2) (m) Access the ward's digital assets in accordance with s. 112.12.
AB695,2
3Section
2. 112.12 of the statutes is created to read:
AB695,4,6
4112.12 Uniform Fiduciary Access to Digital Assets Act. (1) Short title. 5This section may be cited as the Revised Uniform Fiduciary Access to Digital Assets
6Act.
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7(2) Definitions. In this section:
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1(a) "Account" means an arrangement under a terms of service agreement in
2which a custodian carries, maintains, processes, receives, or stores a digital asset of
3the user or provides goods or services to the user.
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(b) "Agent" means a person granted authority to act for a principal under a
5durable or nondurable power of attorney, whether denominated an agent,
6attorney-in-fact, or otherwise.
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(c) "Carries" means engages in the transmission of an electronic
8communication.
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(d) "Catalogue of electronic communications" means information that
10identifies each person with which a user has had an electronic communication, the
11time and date of the communication, and the electronic address of the person.
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(e) "Conservator" means a person appointed under s. 54.76 to manage the
13estate of a living individual.
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(f) "Content of an electronic communication" means information concerning the
15substance or meaning of a communication that satisfies all of the following:
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1. The information was sent or received by a user.
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2. The information is electronically stored by a custodian that provides an
18electronic communication service to the public or is carried or maintained by a
19custodian that provides a remote computing service to the public.
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3. The information is not readily accessible to the public.
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(g) "Court" means the circuit court or judge assigned to exercise probate
22jurisdiction.
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(h) "Custodian" means a person that carries, maintains, processes, receives, or
24stores a digital asset of a user.
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1(i) "Designated recipient" means a person chosen by the user using an online
2tool to administer the user's digital assets.
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(j) "Digital asset" means an electronic record in which an individual has a right
4or interest. A "digital asset" does not include an underlying asset or liability unless
5the asset or liability is itself an electronic record.
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(k) "Electronic" means relating to technology having electrical, digital,
7magnetic, wireless, optical, electromagnetic, or similar capabilities.
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(L) "Electronic communication" has the meaning given in
18 USC 2510 (12).
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(m) "Electronic communication service" means a custodian that provides to a
10user the ability to send or receive an electronic communication.
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(n) "Fiduciary" means an original, additional, or successor personal
12representative, conservator, guardian, agent, or trustee.
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(o) "Guardian" means a person appointed under s. 54.10.
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(p) "Information" means data, text, images, videos, sounds, codes, computer
15programs, software, databases, or the like.
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(q) "Online tool" means an electronic service provided by a custodian under an
17agreement between the custodian and user that is distinct from the terms of service
18agreement that allows the user to provide directions for disclosure or nondisclosure
19of the user's digital assets to a 3rd person.
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(r) "Person" means an individual, estate, business or nonprofit entity, public
21corporation, government or governmental subdivision, agency, or instrumentality, or
22other legal entity.
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(s) "Personal representative" has the meaning given in s. 851.23, but also
24includes a special administrator.
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1(t) "Power of attorney" means a record that grants an agent authority to act in
2the place of a principal.
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(u) "Principal" means an individual who grants authority to an agent in a power
4of attorney.
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(v) "Protected person" means any of the following:
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1. An individual for whom a guardian is appointed or for whom an application
7for the appointment of a guardian is pending.
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2. An individual for whom a conservator is appointed or for whom an
9application for the appointment of a conservator is pending.
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(w) "Record" means information that is inscribed on a tangible medium or that
11is stored in an electronic or other medium and is retrievable in perceivable form.
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(x) "Remote computing service" means a custodian that provides to a user
13computer processing services or the storage of digital assets by means of an electronic
14communications system, as defined in
18 USC 2510 (14).
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(y) "Terms of service agreement" means an agreement that controls the
16relationship between a user and a custodian.
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(z) "Trustee" means a person with legal title to an asset under an agreement
18or declaration that creates a beneficial interest in another.
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(zd) "User" means a person that has an account with a custodian.
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(zk) "Will" includes a codicil and any document incorporated by reference in a
21testamentary document under s. 853.32 (1) or (2).
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22(3) Direction for disclosure of digital assets. (a) A user may allow or
23prohibit disclosure to a fiduciary of some or all of the user's digital assets, including
24the content of electronic communications sent or received by the user, in a will, trust,
1power of attorney, or in any other type of inter vivos governing instrument, as defined
2in s. 700.27 (1) (c), or governing instrument, as defined in s. 854.01 (2).
AB695,8,83
(b) If a user does not allow or prohibit disclosure to a fiduciary of some or all
4of the user's digital assets under par. (a), the user may use an online tool to direct the
5custodian to disclose or not to disclose some or all of the user's digital assets,
6including the content of electronic communications. A contrary direction made by a
7user under par. (a) overrides a direction regarding disclosure made using an online
8tool.
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(c) A user's direction under par. (a) or (b) takes precedence over a contrary
10provision in a terms of service agreement that does not require the user to act
11affirmatively and distinctly from the user's assent to the terms of service.
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12(4) Terms of service agreement. (a) This section does not change or impair
13the rights of a custodian or a user under a terms of service agreement to access and
14use digital assets of the user.
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(b) This section does not give a fiduciary rights other than the rights held by
16the user for whom, or for whose estate, the fiduciary acts or represents.
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(c) A fiduciary's access to digital assets may be modified or eliminated by any
18of the following:
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1. The user.