SB715: Bill Text

LRB-4226/1

FFK:emw/ahe/wlj

2015 - 2016 LEGISLATURE

2015 Senate BILL 715

February 9, 2016 - Introduced by Senators Roth, Risser, Olsen and Miller, cosponsored by Representatives R. Brooks, Sargent, Kahl, Kremer, Goyke, Gannon, Pope, Kolste, Hutton, Sinicki, Murphy and Genrich. Referred to Committee on Revenue, Financial Institutions, and Rural Issues.

SB715,1,4 An Act to amend 155.30 (3) (form) and 244.61 (form); and to create 54.20 (2) (m), 112.12, 155.20 (9), 244.41 (1) (i), 244.43 (9m) and 701.0816 (28) of the statutes; relating to: creating the Revised Uniform Fiduciary Access to Digital Assets 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:

SB715,1 Section 1. 54.20 (2) (m) of the statutes is created to read:

SB715,4,2 54.20 (2) (m) Access the ward's digital assets in accordance with s. 112.12.

SB715,2 Section 2. 112.12 of the statutes is created to read:

SB715,4,6 112.12 Uniform Fiduciary Access to Digital Assets Act. (1) Short title. This section may be cited as the Revised Uniform Fiduciary Access to Digital Assets Act.

SB715,4,7 (2) Definitions. In this section:

SB715,5,3 (a) "Account" means an arrangement under a terms of service agreement in which a custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user.

SB715,5,6 (b) "Agent" means a person granted authority to act for a principal under a durable or nondurable power of attorney, whether denominated an agent, attorney-in-fact, or otherwise.

SB715,5,8 (c) "Carries" means engages in the transmission of an electronic communication.

SB715,5,11 (d) "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.

SB715,5,13 (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).