Amendment SSA1-SB715

SB715-SSA1,12,2 Chapter 711

SB715-SSA1,12,3 Digital Property

SB715-SSA1,12,5 711.01 Short title. This chapter may be cited as the Wisconsin Digital Property Act.

SB715-SSA1,12,7 711.02 Liberal construction. This chapter is remedial in nature and shall be liberally construed, consistent with s. 711.14.

SB715-SSA1,12,8 711.03 Definitions. In this chapter:

SB715-SSA1,12,11 (1) "Account" means an arrangement under a terms of service agreement in which a custodian carries, maintains, processes, receives, or stores a user's digital property or provides goods or services to the user.

SB715-SSA1,12,13 (2) "Agent" means a person granted authority to act under a durable or nondurable power of attorney.

SB715-SSA1,12,15 (3) "Carries" means engages in the transmission of an electronic communication.

SB715-SSA1,12,18 (4) "Catalogue of electronic communications" means information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person.

SB715-SSA1,12,20 (5) "Conservator" means a person appointed under s. 54.76 to manage the estate of a living individual.

SB715-SSA1,12,22 (6) "Content of an electronic communication" means information concerning the substance or meaning of a communication that satisfies all of the following:

SB715-SSA1,12,23 (a) The information was sent or received by a user.

SB715-SSA1,13,3 (b) 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-SSA1,13,4 (c) The information is not readily accessible to the public.

SB715-SSA1,13,6 (7) "Court" means the circuit court having jurisdiction over a matter related to this chapter.

SB715-SSA1,13,8 (8) "Custodian" means a person that carries, maintains, processes, receives, or stores a user's digital property.

SB715-SSA1,13,10 (9) "Designated recipient" means a person chosen by the user using an online tool to administer the user's digital property.

SB715-SSA1,13,13 (10) "Digital property" means an electronic record in which a person has a right or interest. "Digital property" does not include underlying property or an underlying liability unless the property or liability is itself an electronic record.

SB715-SSA1,13,15 (11) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

SB715-SSA1,13,16 (12) "Electronic communication" has the meaning given in 18 USC 2510 (12).

SB715-SSA1,13,18 (13) "Electronic communication service" means a custodian that provides to a user the ability to send or receive an electronic communication.

SB715-SSA1,13,20 (14) "Fiduciary" means an original, additional, or successor personal representative, conservator, guardian, agent, or trustee.

SB715-SSA1,13,21 (15) "Governing instrument" has the meaning given in s. 854.01 (2).

SB715-SSA1,13,22 (16) "Guardian" means a person appointed under s. 54.10.

SB715-SSA1,13,24 (17) "Information" means data, text, images, videos, sounds, codes, computer programs, software, databases, or the like.

SB715-SSA1,14,4 (18) "Online tool" means a setting provided by a custodian that allows the user, by an agreement between the custodian and user that is distinct from the user's assent to the terms of service, to provide directions for disclosure or nondisclosure of digital property to a designated recipient.

SB715-SSA1,14,7 (19) "Person" means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.

SB715-SSA1,14,11 (20) "Personal representative" has the meaning given in s. 851.23, but also includes a special administrator and any person who, under the laws of this state other than this chapter, performs functions substantially similar to a personal representative, as defined in s. 851.23.

SB715-SSA1,14,13 (21) "Power of attorney" means an instrument that grants an agent authority to act in the place of a principal.

SB715-SSA1,14,15 (22) "Principal" means an individual who grants authority to an agent in a power of attorney.

SB715-SSA1,14,16 (23) "Protected person" means all of the following:

SB715-SSA1,14,17 1. An individual for whom a guardian is appointed.

SB715-SSA1,14,18 2. An individual for whom a conservator is appointed.

SB715-SSA1,14,20 (24) "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-SSA1,14,23 (25) "Remote computing service" means a custodian that provides to a user computer processing services or the storage of digital property by means of an electronic communications system, as defined in 18 USC 2510 (14).

SB715-SSA1,14,25 (26) "Terms of service agreement" means an agreement that controls the relationship between a user and a custodian.

SB715-SSA1,15,3 (27) "Trustee" means a person with legal title to an asset under an agreement or declaration that creates a beneficial interest in another. "Trustee" includes an original, additional, and successor trustee, and a cotrustee.

SB715-SSA1,15,4 (28) "User" means a person that has an account with a custodian.

SB715-SSA1,15,6 (29) "Will" includes a codicil and any document incorporated by reference in a testamentary document under s. 853.32 (1) or (2).

SB715-SSA1,15,13 711.04 Priorities; user directions for disclosure of digital property.. (1) A user may use an online tool to direct the custodian to disclose to a designated recipient or not to disclose some or all of the user's digital property, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or any other governing instrument.

SB715-SSA1,15,18 (2) If a user has not used an online tool to give direction under sub. (1), or if the custodian has not provided an online tool, the user may allow or prohibit disclosure to a fiduciary of some or all of the user's digital property, including the content of electronic communications sent or received by the user, in a will, trust, power of attorney, or any other governing instrument.

SB715-SSA1,15,21 (3) A user's direction under sub. (1) or (2) overrides 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-SSA1,16,5 711.05 Disclosure of digital property; personal representative of a deceased user. (1) Digital property other than content of electronic communications. Unless a user prohibited disclosure of digital property or the court directs otherwise, a custodian shall disclose to the personal representative of the deceased user's estate a catalogue of electronic communications sent or received by the deceased user and digital property, other than the content of electronic communications sent or received by the deceased user, in which the deceased user's estate has a right or interest, if the personal representative gives the custodian all of the following:

SB715-SSA1,16,6 (a) A written request for disclosure in physical or electronic form.

SB715-SSA1,16,7 (b) A certified copy of the death certificate of the user.

SB715-SSA1,16,9 (c) One of the following to establish the personal representative's authority over the deceased user's digital property:

SB715-SSA1,16,11 1. A certified copy of the letters of appointment of the personal representative or special administrator.

SB715-SSA1,16,12 2. A summary proceeding or other court order.

SB715-SSA1,16,13 3. A transfer by affidavit.

SB715-SSA1,16,14 (d) If requested by the custodian, any of the following:

SB715-SSA1,16,16 1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account.

SB715-SSA1,16,17 2. Evidence linking the account to the user.

SB715-SSA1,16,19 3. An affidavit stating that disclosure of the user's digital property is reasonably necessary for administration of the estate.

SB715-SSA1,16,20 4. A court order that includes any of the following findings:

SB715-SSA1,16,22 a. The user had a specific account with the custodian, identifiable by the information specified in subd. 1.

SB715-SSA1,16,24 b. The disclosure of the user's digital property is reasonably necessary for administration of the estate.

SB715-SSA1,17,7 (2) 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 deceased user's estate the content of an electronic communication sent or received by the user, in which the deceased user's estate has a right or interest, if the personal representative gives the custodian all of the following:

SB715-SSA1,17,8 (a) The items described in sub. (1) (a) to (c).

SB715-SSA1,17,12 (b) Unless the user provided direction using an online tool, a copy of the user's will, certification of trust under s. 701.1013, or other governing instrument, evidencing the deceased user's consent to disclosure of the content of electronic communications.

SB715-SSA1,17,13 (c) If requested by the custodian, any of the following:

SB715-SSA1,17,15 1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account.

SB715-SSA1,17,16 2. Evidence linking the account to the user.

SB715-SSA1,17,17 3. A court order that includes any of the following findings:

SB715-SSA1,17,19 a. The user had a specific account with the custodian that is identifiable by the information specified in subd. 1.

SB715-SSA1,17,21 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-SSA1,17,23 c. Unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications.

SB715-SSA1,17,25 d. The disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.

SB715-SSA1,18,9 711.06 Disclosure of digital property; agent under a power of attorney. (1) Disclosure of digital property 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 property or general authority to act on behalf of a principal a catalogue of electronic communications sent or received by the principal and digital property, other than the content of electronic communications, in which the principal has a right or interest, if the agent gives the custodian all of the following:

SB715-SSA1,18,10 (a) A written request for disclosure in physical or electronic form.

SB715-SSA1,18,12 (b) An original or a copy of the power of attorney that gives the agent specific authority over digital property or general authority to act on behalf of the principal.

SB715-SSA1,18,14 (c) A certification by the agent, under penalty of perjury, that the power of attorney is in effect.

SB715-SSA1,18,15 (d) If requested by the custodian, any of the following:

SB715-SSA1,18,17 1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account.

SB715-SSA1,18,18 2. Evidence linking the account to the principal.

SB715-SSA1,18,24 (2) 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-SSA1,18,25 (a) The items described in sub. (1) (a), (c), and (d).

SB715-SSA1,19,2 (b) An original or a copy of the power of attorney that expressly grants the agent authority over the content of electronic communications of the principal.

SB715-SSA1,19,8 711.07 Disclosure of digital property held in trust. (1) Disclosure of digital property 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 property of the account that is held in trust, including a catalogue of electronic communications of the trustee and the content of electronic communications.

SB715-SSA1,19,16 (2) Disclosure of digital property other than content of electronic communications; 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, a catalogue of electronic communications sent or received by an original or successor user and stored, carried, or maintained by the custodian in an account of the trust and any digital property, other than the content of electronic communications, in which the trust has a right or interest, if the trustee gives the custodian all of the following:

SB715-SSA1,19,17 (a) A written request for disclosure in physical or electronic form.

SB715-SSA1,19,18 (b) A certification of the trust under s. 701.1013.

SB715-SSA1,19,20 (c) A certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust.

SB715-SSA1,19,21 (d) If requested by the custodian, any of the following:

SB715-SSA1,19,23 1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust's account.

SB715-SSA1,19,24 2. Evidence linking the account to the trust.

SB715-SSA1,20,7 (3) 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, in which the trust has a right or interest, if the trustee gives the custodian all of the following:

SB715-SSA1,20,8 (a) The items described in sub. (2) (a), (c), and (d).

SB715-SSA1,20,11 (b) A certification of the trust under s. 701.1013 that includes an original or successor user's consent to disclosure of the content of electronic communications to the trustee.

SB715-SSA1,20,14 711.08 Disclosure of digital property; conservator or guardian of protected person. (1) After an opportunity for a hearing under s. 54.10, the court may grant a guardian access to the digital property of a protected person.