SB715: Bill Text

SB715,5,13 (e) "Conservator" means a person appointed under s. 54.76 to manage the estate of a living individual.

SB715,5,15 (f) "Content of an electronic communication" means information concerning the substance or meaning of a communication that satisfies all of the following:

SB715,5,16 1. The information was sent or received by a user.

SB715,5,19 2. The information is electronically stored by a custodian that provides an electronic communication service to the public or is carried or maintained by a custodian that provides a remote computing service to the public.

SB715,5,20 3. The information is not readily accessible to the public.

SB715,5,22 (g) "Court" means the circuit court or judge assigned to exercise probate jurisdiction.

SB715,5,24 (h) "Custodian" means a person that carries, maintains, processes, receives, or stores a digital asset of a user.

SB715,6,2 (i) "Designated recipient" means a person chosen by the user using an online tool to administer the user's digital assets.

SB715,6,5 (j) "Digital asset" means an electronic record in which an individual has a right or interest. A "digital asset" does not include an underlying asset or liability unless the asset or liability is itself an electronic record.

SB715,6,7 (k) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

SB715,6,8 (L) "Electronic communication" has the meaning given in 18 USC 2510 (12).

SB715,6,10 (m) "Electronic communication service" means a custodian that provides to a user the ability to send or receive an electronic communication.

SB715,6,12 (n) "Fiduciary" means an original, additional, or successor personal representative, conservator, guardian, agent, or trustee.

SB715,6,13 (o) "Guardian" means a person appointed under s. 54.10.

SB715,6,15 (p) "Information" means data, text, images, videos, sounds, codes, computer programs, software, databases, or the like.

SB715,6,19 (q) "Online tool" means an electronic service provided by a custodian under an agreement between the custodian and user that is distinct from the terms of service agreement that allows the user to provide directions for disclosure or nondisclosure of the user's digital assets to a 3rd person.

SB715,6,22 (r) "Person" means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.

SB715,6,24 (s) "Personal representative" has the meaning given in s. 851.23, but also includes a special administrator.

SB715,7,2 (t) "Power of attorney" means a record that grants an agent authority to act in the place of a principal.

SB715,7,4 (u) "Principal" means an individual who grants authority to an agent in a power of attorney.

SB715,7,5 (v) "Protected person" means any of the following:

SB715,7,7 1. An individual for whom a guardian is appointed or for whom an application for the appointment of a guardian is pending.

SB715,7,9 2. An individual for whom a conservator is appointed or for whom an application for the appointment of a conservator is pending.

SB715,7,11 (w) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

SB715,7,14 (x) "Remote computing service" means a custodian that provides to a user computer processing services or the storage of digital assets by means of an electronic communications system, as defined in 18 USC 2510 (14).

SB715,7,16 (y) "Terms of service agreement" means an agreement that controls the relationship between a user and a custodian.

SB715,7,18 (z) "Trustee" means a person with legal title to an asset under an agreement or declaration that creates a beneficial interest in another.

SB715,7,19 (zd) "User" means a person that has an account with a custodian.

SB715,7,21 (zk) "Will" includes a codicil and any document incorporated by reference in a testamentary document under s. 853.32 (1) or (2).

SB715,8,2 (3) Direction for disclosure of digital assets. (a) A user may allow or prohibit disclosure to a fiduciary of some or all of the user's digital assets, including the content of electronic communications sent or received by the user, in a will, trust, power of attorney, or in any other type of inter vivos governing instrument, as defined in s. 700.27 (1) (c), or governing instrument, as defined in s. 854.01 (2).

SB715,8,8 (b) If a user does not allow or prohibit disclosure to a fiduciary of some or all of the user's digital assets under par. (a), the user may use an online tool to direct the custodian to disclose or not to disclose some or all of the user's digital assets, including the content of electronic communications. A contrary direction made by a user under par. (a) overrides a direction regarding disclosure made using an online tool.

SB715,8,11 (c) A user's direction under par. (a) or (b) takes precedence over a contrary provision in a terms of service agreement that does not require the user to act affirmatively and distinctly from the user's assent to the terms of service.

SB715,8,14 (4) Terms of service agreement. (a) This section 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 of the user.

SB715,8,16 (b) This section does not give a fiduciary rights other than the rights held by the user for whom, or for whose estate, the fiduciary acts or represents.

SB715,8,18 (c) A fiduciary's access to digital assets may be modified or eliminated by any of the following:

SB715,8,19 1. The user.

SB715,8,20 2. Federal law.

SB715,8,22 3. A terms of service agreement if the user has not provided direction under sub. (3).

SB715,8,25 (5) Procedure for disclosing digital assets. (a) When disclosing digital assets of a user under this section, the custodian may in its sole discretion provide a fiduciary or designated recipient with any of the following:

SB715,9,1 1. Full access to the user's account.

SB715,9,3 2. Partial access to the user's account that is sufficient to perform the tasks with which the fiduciary or designated recipient is charged.

SB715,9,6 3. A copy in a record of any digital asset that the user could have accessed if the user were alive, had full capacity, and had full access to the account on the date the custodian received the request for disclosure.

SB715,9,8 (b) A custodian may assess a reasonable administrative charge to a fiduciary or designated recipient for the cost of disclosing digital assets under this section.

SB715,9,10 (c) A custodian need not disclose under this section a digital asset deleted by the user.

SB715,9,17 (d) If a user directs or a fiduciary requests a custodian to disclose under this section some, but not all, of the user's digital assets, the custodian need not disclose the digital assets if segregation of the digital assets would impose an undue burden on the custodian. If the custodian refuses to disclose digital assets because the custodian believes the segregation of the digital assets imposes an undue burden, the custodian or fiduciary may seek an order from the court to disclose any of the following:

SB715,9,19 1. To the fiduciary or designated recipient, a subset of the user's digital assets that is limited by date.

SB715,9,20 2. To the fiduciary or designated recipient, all of the user's digital assets.

SB715,9,21 3. None of the user's digital assets.

SB715,9,22 4. To the court for review in camera, all of the user's digital assets.

SB715,9,25 (6) Disclosure of content of electronic communications; deceased user. If a deceased user consented or a court directs disclosure of the contents of electronic communications of a deceased user, the custodian shall disclose to the personal representative of the user's estate the content of an electronic communication sent or received by the user if the personal representative gives the custodian all of the following:

SB715,10,4 (a) A written request for disclosure in physical or electronic form.

SB715,10,5 (b) A certified copy of the death certificate of the user.

SB715,10,8 (c) A certified copy of the letters to administer the user's estate or, if the personal representative is a special administrator, a certified copy of the letters of special administration.

SB715,10,11 (d) Unless the user provided direction using an online tool, a copy of the will, trust, power of attorney, or other record evidencing the user's consent to disclosure of the content of electronic communications.

SB715,10,12 (e) If requested by the custodian, any of the following:

SB715,10,14 1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account.

SB715,10,15 2. Evidence linking the account to the user.

SB715,10,16 3. A court order that includes all of the following findings:

SB715,10,18 a. The user had a specific account with the custodian that is identifiable by the information specified in subd. 1.

SB715,10,20 b. The disclosure of the content of electronic communications of the user does not violate 18 USC 2701 et seq., 47 USC 222, or other applicable law.

SB715,10,22 c. Unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications.

SB715,10,24 d. The disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.

SB715,11,6 (7) Disclosure of other digital assets; deceased user. Unless a deceased user prohibited disclosure of digital assets or the court directs otherwise, a custodian shall disclose to the personal representative of the user's estate a catalogue of electronic communications sent or received by the user and digital assets, other than the content of electronic communications, of the user, if the personal representative gives the custodian all of the following:

SB715,11,7 (a) A written request for disclosure in physical or electronic form.

SB715,11,8 (b) A certified copy of the death certificate of the user.

SB715,11,11 (c) A certified copy of the letters to administer the user's estate or, if the personal representative is a special administrator, a certified copy of the letters of special administration.

SB715,11,12 (d) If requested by the custodian, any of the following:

SB715,11,14 1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account.

SB715,11,15 2. Evidence linking the account to the user.

SB715,11,17 3. An affidavit stating that disclosure of the user's digital assets is reasonably necessary for administration of the estate.

SB715,11,18 4. A court order that includes all of the following findings:

SB715,11,20 a. The user had a specific account with the custodian, identifiable by the information specified in subd. 1.

SB715,11,22 b. The disclosure of the user's digital assets is reasonably necessary for administration of the estate.

SB715,12,3 (8) Disclosure of content of electronic communications; principal. To the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by the principal and unless directed otherwise by the principal or the court, a custodian shall disclose to the agent the content of electronic communications if the agent gives the custodian all of the following:

SB715,12,4 (a) A written request for disclosure in physical or electronic form.

SB715,12,6 (b) An original or copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal.

SB715,12,8 (c) A certification by the agent, under penalty of perjury, that the power of attorney is in effect.

SB715,12,9 (d) If requested by the custodian, any of the following:

SB715,12,11 1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account.

SB715,12,12 2. Evidence linking the account to the principal.

SB715,12,19 (9) Disclosure of digital assets other than content of electronic communications; principal. Unless otherwise ordered by the court, directed by the principal, or provided in a power of attorney, a custodian shall disclose to an agent with specific authority over the principal's digital assets or general authority to act on behalf of a principal a catalogue of electronic communications sent or received by the principal and the principal's digital assets, other than the content of electronic communications, if the agent gives the custodian all of the following:

SB715,12,20 (a) A written request for disclosure in physical or electronic form.

SB715,12,23 (b) An original or a copy of the power of attorney that gives the agent specific authority over the principal's digital assets or general authority to act on behalf of the principal.

SB715,12,25 (c) A certification by the agent, under penalty of perjury, that the power of attorney is in effect.

SB715,13,1 (d) If requested by the custodian, any of the following:

SB715,13,3 1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account.

SB715,13,4 2. Evidence linking the account to the principal.

SB715,13,9 (10) Disclosure of digital assets held in trust; trustee is original user. Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose to a trustee who is an original user of an account any digital asset of the account that is held in trust, including a catalogue of electronic communications of the trustee and the content of electronic communications.

SB715,13,16 (11) Disclosure of contents of electronic communications held in trust; trustee is not original user. Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account the content of an electronic communication sent or received by an original or successor user and carried, maintained, processed, received, or stored by the custodian in the trust's account if the trustee gives the custodian all of the following: