AB695: Bill Text

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.

AB695,17,8 b. A certified copy of the letters of special administration.

AB695,17,9 c. A certified copy of a court order.

AB695,17,10 d. An original or copy of a power of attorney.

AB695,17,11 e. A copy of the trust instrument or a certification of the trust under s. 701.1013.

AB695,17,12 3. If requested by the custodian, any of the following:

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

AB695,17,15 b. Evidence linking the account to the user.

AB695,17,17 c. A finding by the court that the user had a specific account with the custodian, identifiable by the information specified in subd. 3. a.

AB695,17,23 (15) Custodian compliance and immunity. (a) Not later than 60 days after receipt of the information required under subs. (6) to (13), as applicable, a custodian shall comply with a request under this section from a fiduciary or designated recipient to disclose digital assets or terminate an account. If the custodian fails to comply, the fiduciary or designated recipient may apply to the court for an order directing the custodian to comply with the request.

AB695,18,3 (b) A court shall include in an order directing a custodian to comply with a request made under this section a finding that compliance with the request does not violate 18 USC 2702.

AB695,18,5 (c) A custodian may notify the user that a request for disclosure of digital assets or to terminate an account was made under this section.

AB695,18,9 (d) A custodian may deny a request under this section from a fiduciary or designated recipient for disclosure of digital assets or to terminate an account if the custodian is aware of any lawful access to the account after the receipt of the fiduciary's request.

AB695,18,12 (e) This section does not limit a custodian's ability to obtain or to require a fiduciary or designated recipient requesting disclosure or termination under this section to obtain a court order that does all of the following:

AB695,18,13 1. Specifies that an account belongs to the protected person or principal.

AB695,18,15 2. Specifies that there is sufficient consent from the protected person or principal to support the requested disclosure.

AB695,18,16 3. Contains any findings required by law other than this section.

AB695,18,18 (f) A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good faith in compliance with this section.

AB695,18,21 (16) Uniformity of application and construction. In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

AB695,19,2 (17) Relation to Electronic Signatures in Global and National Commerce Act. This section modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, 15 USC 7001 et seq., but does not modify, limit, or supersede section 101 (c) of that act, 15 USC 7001 (c), or authorize electronic delivery of any of the notices described in section 103 (b) of that act, 15 USC 7003 (b).

AB695,19,3 (18) Applicability. (a) This section applies to all of the following:

AB695,19,5 1. A fiduciary acting under a will or power of attorney executed before, on, or after the effective date of this subdivision .... [LRB inserts date].

AB695,19,7 2. A personal representative acting for a decedent who died before, on, or after the effective date of this subdivision .... [LRB inserts date].

AB695,19,10 3. A guardianship or conservatorship proceeding, whether pending in a court or commenced before, on, or after the effective date of this subdivision .... [LRB inserts date].

AB695,19,12 4. A trustee acting under a trust created before, on, or after the effective date of this subdivision .... [LRB inserts date].

AB695,19,14 (b) This section applies to a custodian only if the user resides in this state or resided in this state at the time of the user's death.

AB695,19,16 (c) This section does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer's business.

AB695,3 Section 3. 155.20 (9) of the statutes is created to read:

AB695,19,19 155.20 (9) The health care agent may access the principal's digital assets, as defined in s. 112.12 (2) (j), as provided under s. 112.12.

AB695,4 Section 4. 155.30 (3) (form) of the statutes is amended to read:

AB695,19,21 155.30 (3) (form)

AB695,19,22 POWER OF ATTORNEY FOR HEALTH CARE

AB695,19,23 Document made this.... day of.... (month),.... (year).

AB695,19,25 CREATION OF POWER OF ATTORNEY FOR HEALTH CARE

AB695,20,8 I,.... (print name, address and date of birth), being of sound mind, intend by this document to create a power of attorney for health care. My executing this power of attorney for health care is voluntary. Despite the creation of this power of attorney for health care, I expect to be fully informed about and allowed to participate in any health care decision for me, to the extent that I am able. For the purposes of this document, "health care decision" means an informed decision to accept, maintain, discontinue or refuse any care, treatment, service or procedure to maintain, diagnose or treat my physical or mental condition.

AB695,20,10 In addition, I may, by this document, specify my wishes with respect to making an anatomical gift upon my death.

AB695,20,11 DESIGNATION OF HEALTH CARE AGENT

AB695,21,2 If I am no longer able to make health care decisions for myself, due to my incapacity, I hereby designate.... (print name, address and telephone number) to be my health care agent for the purpose of making health care decisions on my behalf. If he or she is ever unable or unwilling to do so, I hereby designate.... (print name, address and telephone number) to be my alternate health care agent for the purpose of making health care decisions on my behalf. Neither my health care agent nor my alternate health care agent whom I have designated is my health care provider, an employee of my health care provider, an employee of a health care facility in which I am a patient or a spouse of any of those persons, unless he or she is also my relative. For purposes of this document, "incapacity" exists if 2 physicians or a physician and a psychologist who have personally examined me sign a statement that specifically expresses their opinion that I have a condition that means that I am unable to receive and evaluate information effectively or to communicate decisions to such an extent that I lack the capacity to manage my health care decisions. A copy of that statement must be attached to this document.

AB695,21,3 GENERAL STATEMENT OF AUTHORITY GRANTED

AB695,21,10 Unless I have specified otherwise in this document, if I ever have incapacity I instruct my health care provider to obtain the health care decision of my health care agent, if I need treatment, for all of my health care and treatment. I have discussed my desires thoroughly with my health care agent and believe that he or she understands my philosophy regarding the health care decisions I would make if I were able. I desire that my wishes be carried out through the authority given to my health care agent under this document.

AB695,21,19 If I am unable, due to my incapacity, to make a health care decision, my health care agent is instructed to make the health care decision for me, but my health care agent should try to discuss with me any specific proposed health care if I am able to communicate in any manner, including by blinking my eyes. If this communication cannot be made, my health care agent shall base his or her decision on any health care choices that I have expressed prior to the time of the decision. If I have not expressed a health care choice about the health care in question and communication cannot be made, my health care agent shall base his or her health care decision on what he or she believes to be in my best interest.