AB695: Bill Text

AB695,8,25 (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:

AB695,9,1 1. Full access to the user's account.

AB695,9,3 2. Partial access to the user's account that is sufficient to perform the tasks with which the fiduciary or designated recipient is charged.

AB695,9,6 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.

AB695,9,8 (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.

AB695,9,10 (c) A custodian need not disclose under this section a digital asset deleted by the user.

AB695,9,17 (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:

AB695,9,19 1. To the fiduciary or designated recipient, a subset of the user's digital assets that is limited by date.

AB695,9,20 2. To the fiduciary or designated recipient, all of the user's digital assets.

AB695,9,21 3. None of the user's digital assets.

AB695,9,22 4. To the court for review in camera, all of the user's digital assets.

AB695,9,25 (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:

AB695,10,4 (a) A written request for disclosure in physical or electronic form.

AB695,10,5 (b) A certified copy of the death certificate of the user.

AB695,10,8 (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.

AB695,10,11 (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.

AB695,10,12 (e) If requested by the custodian, any of the following:

AB695,10,14 1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account.

AB695,10,15 2. Evidence linking the account to the user.

AB695,10,16 3. A court order that includes all of the following findings:

AB695,10,18 a. The user had a specific account with the custodian that is identifiable by the information specified in subd. 1.

AB695,10,20 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.

AB695,10,22 c. Unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications.

AB695,10,24 d. The disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.

AB695,11,6 (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:

AB695,11,7 (a) A written request for disclosure in physical or electronic form.

AB695,11,8 (b) A certified copy of the death certificate of the user.

AB695,11,11 (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.

AB695,11,12 (d) If requested by the custodian, any of the following:

AB695,11,14 1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account.

AB695,11,15 2. Evidence linking the account to the user.

AB695,11,17 3. An affidavit stating that disclosure of the user's digital assets is reasonably necessary for administration of the estate.

AB695,11,18 4. A court order that includes all of the following findings:

AB695,11,20 a. The user had a specific account with the custodian, identifiable by the information specified in subd. 1.

AB695,11,22 b. The disclosure of the user's digital assets is reasonably necessary for administration of the estate.

AB695,12,3 (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:

AB695,12,4 (a) A written request for disclosure in physical or electronic form.

AB695,12,6 (b) An original or copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal.

AB695,12,8 (c) A certification by the agent, under penalty of perjury, that the power of attorney is in effect.

AB695,12,9 (d) If requested by the custodian, any of the following:

AB695,12,11 1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account.

AB695,12,12 2. Evidence linking the account to the principal.

AB695,12,19 (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:

AB695,12,20 (a) A written request for disclosure in physical or electronic form.

AB695,12,23 (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.

AB695,12,25 (c) A certification by the agent, under penalty of perjury, that the power of attorney is in effect.

AB695,13,1 (d) If requested by the custodian, any of the following:

AB695,13,3 1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account.

AB695,13,4 2. Evidence linking the account to the principal.

AB695,13,9 (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.

AB695,13,16 (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:

AB695,13,17 (a) A written request for disclosure in physical or electronic form.

AB695,13,20 (b) A copy of the trust instrument or a certification of the trust under s. 701.1013 that includes consent to disclosure of the content of electronic communications to the trustee.

AB695,13,22 (c) A certification by the trustee, under penalty of perjury, that the trust exists and that the trustee is a currently acting trustee of the trust.

AB695,13,23 (d) If requested by the custodian, any of the following:

AB695,13,25 1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust's account.

AB695,14,1 2. Evidence linking the account to the trust.

AB695,14,9 (12) Disclosure of digital assets 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 assets, 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:

AB695,14,10 (a) A written request for disclosure in physical or electronic form.

AB695,14,12 (b) A copy of the trust instrument or a certification of the trust under s. 701.1013.

AB695,14,14 (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.

AB695,14,15 (d) If requested by the custodian, any of the following:

AB695,14,17 1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust's account.

AB695,14,18 2. Evidence linking the account to the trust.

AB695,14,22 (13) Disclosure of digital assets; conservator or guardian. (a) 1. After an opportunity for a hearing under s. 54.10, the court may grant a guardian access to the digital assets of an individual for whom a guardian has been appointed or for whom an application for the appointment of a guardian is pending.

AB695,15,2 2. After an opportunity for a hearing under s. 54.76, the court may grant a conservator access to the digital assets of an individual for whom a conservator has been appointed or for whom an application for the appointment of a conservator is pending.

AB695,15,7 (b) Unless otherwise ordered by the court or directed by the user, a custodian shall disclose to a guardian or custodian the catalogue of electronic communications sent or received by a protected person and any digital assets, other than the content of electronic communications, in which the protected person has a right or interest if the guardian or conservator gives the custodian all of the following:

AB695,15,8 1. A written request for disclosure in physical or electronic form.

AB695,15,10 2. A certified copy of the court order that gives the guardian or conservator authority over the protected person's digital assets.

AB695,15,11 3. If requested by the custodian, any of the following:

AB695,15,13 a. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the account of the protected person.

AB695,15,14 b. Evidence linking the account to the protected person.

AB695,15,20 (c) A guardian or conservator with general authority to manage a protected person's assets may request a custodian of the protected person's digital assets to suspend or terminate an account of the protected person for good cause. A request made under this paragraph shall be accompanied by a certified copy of the court order granting the guardian or conservator general authority to manage the protected person's assets.

AB695,15,23 (14) Fiduciary; duties and authority. (a) The legal duties imposed on a fiduciary with the authority to manage tangible property apply to a fiduciary's management of digital assets, including all of the following:

AB695,15,24 1. The duty of care.

AB695,15,25 2. The duty of loyalty.

AB695,16,1 3. The duty of confidentiality.

AB695,16,4 (b) A fiduciary's authority with respect to a user's digital asset may not be used to impersonate the user, is limited by the scope of the fiduciary's duties, and is subject to all of the following:

AB695,16,5 1. Except as otherwise provided in sub. (3), the applicable terms of service.

AB695,16,6 2. Other applicable law, including copyright law.

AB695,16,10 (c) A fiduciary with authority over the property of a decedent, protected person, principal, or settlor has the right to access any digital asset 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.

AB695,16,13 (d) A fiduciary acting within the scope of the fiduciary's duties is an authorized user of the digital assets of the decedent, protected person, principal, or settlor for the purpose of applicable computer fraud and unauthorized computer access laws.

AB695,16,16 (e) 1. 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 asset stored in the tangible personal property.

AB695,16,20 2. A fiduciary with authority over the tangible personal property of a decedent, protected person, principal, or settlor is an authorized user of digital assets stored in the tangible personal property for the purpose of computer fraud and unauthorized computer access laws.

AB695,16,23 (f) 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 assets licensed to the user.

AB695,17,3 (g) 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:

AB695,17,4 1. If the user is deceased, a certified copy of the death certificate of the user.

AB695,17,6 2. Any of the following that grants the fiduciary authority over the user's account:

AB695,17,7 a. A certified copy of the fiduciary's letters to administer the user's estate.