Chapter 711

CHAPTER 711

DIGITAL PROPERTY

711.01   Short title.

711.02   Liberal construction.

711.03   Definitions.

711.04   Priorities; user directions for disclosure of digital property.

711.05   Disclosure of digital property; personal representative of a deceased user.

711.06   Disclosure of digital property; agent under a power of attorney.

711.07   Disclosure of digital property held in trust.

711.08   Disclosure of digital property; conservator or guardian of protected person.

711.09   Choice of methods for disclosing digital property; custodian.

711.10   Custodian compliance and immunity.

711.11   Terms of service agreement.

711.12   Fiduciary duty and authority.

711.13   Marital property classification of digital property.

711.14   Uniformity of application and construction.

711.15   Relation to Electronic Signatures in Global and National Commerce Act.

711.16   Applicability.

711.01 711.01 Short title. This chapter may be cited as the Wisconsin Digital Property Act.

711.01 History History: 2015 a. 300.

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

711.02 History History: 2015 a. 300.

711.03 711.03 Definitions. In this chapter:

711.03(1) (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.

711.03(2) (2) “Agent” means a person granted authority to act under a durable or nondurable power of attorney.

711.03(3) (3) “Carries” means engages in the transmission of an electronic communication.

711.03(4) (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.

711.03(4m) (4m) “Consent instrument” means a written notarized document in physical or electronic form evidencing the user’s consent to the disclosure of the contents of electronic communications to a then acting fiduciary.

711.03(5) (5) “Conservator” means a person appointed under s. 54.76 to manage the estate of a living individual.

711.03(6) (6) “Content of an electronic communication” means information concerning the substance or meaning of a communication that satisfies all of the following:

711.03(6)(a) (a) The information was sent or received by a user.

711.03(6)(b) (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.

711.03(6)(c) (c) The information is not readily accessible to the public.

711.03(7) (7) “Court” means the circuit court having jurisdiction over a matter related to this chapter.

711.03(8) (8) “Custodian” means a person that carries, maintains, processes, receives, or stores a user’s digital property.

711.03(9) (9) “Designated recipient” means a person chosen by the user using an online tool to administer the user’s digital property.

711.03(10) (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.

711.03(11) (11) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

711.03(12) (12) “Electronic communication” has the meaning given in 18 USC 2510 (12).

711.03(13) (13) “Electronic communication service” means a custodian that provides to a user the ability to send or receive an electronic communication.

711.03(14) (14) “Fiduciary” means an original, additional, or successor personal representative, conservator, guardian, agent, or trustee.

711.03(15) (15) “Governing instrument” has the meaning given in s. 854.01 (2).

711.03(16) (16) “Guardian” means a person appointed under s. 54.10.

711.03(17) (17) “Information” means data, text, images, videos, sounds, codes, computer programs, software, databases, or the like.

711.03(18) (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.

711.03(19) (19) “Person” means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.

711.03(20) (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.

711.03(21) (21) “Power of attorney” means an instrument that grants an agent authority to act in the place of a principal.

711.03(22) (22) “Principal” means an individual who grants authority to an agent in a power of attorney.

711.03(23) (23) “Protected person” means all of the following:

711.03(23)(a) (a) An individual for whom a guardian is appointed.

711.03(23)(b) (b) An individual for whom a conservator is appointed.

711.03(24) (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.

711.03(25) (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).

711.03(26) (26) “Terms of service agreement” means an agreement that controls the relationship between a user and a custodian.

711.03(27) (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.

711.03(28) (28) “User” means a person that has an account with a custodian.

711.03(29) (29) “Will” includes a codicil and any document incorporated by reference in a testamentary document under s. 853.32 (1) or (2).

711.03 History History: 2015 a. 300; 2017 a. 365 s. 110; 2023 a. 127.

711.04 711.04 Priorities; user directions for disclosure of digital property.

711.04(1) (1) A user may use an online tool to direct the custodian to disclose or not disclose to a designated recipient 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 any of the following:

711.04(1)(a) (a) A will, trust, or any other governing instrument.

711.04(1)(b) (b) A power of attorney.

711.04(1)(c) (c) A consent instrument.

711.04(1)(d) (d) Any other record.

711.04(2) (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, any other governing instrument, power of attorney, or consent instrument.

711.04(3) (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.

711.04 History History: 2015 a. 300; 2023 a. 127.

711.05 711.05 Disclosure of digital property; personal representative of a deceased user.

711.05(1) (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:

711.05(1)(a) (a) A written request for disclosure in physical or electronic form.

711.05(1)(b) (b) A certified copy of the death record of the user.

711.05(1)(c) (c) One of the following to establish the personal representative’s authority over the deceased user’s digital property:

711.05(1)(c)1. 1. A certified copy of the letters of appointment of the personal representative or special administrator.

711.05(1)(c)2. 2. A certified copy of a summary proceeding order under s. 867.01 or 867.02.

711.05(1)(c)3. 3. An original or copy of an affidavit under s. 867.03.

711.05(1)(c)4. 4. An original or copy of an application under s. 867.046.

711.05(1)(d) (d) If requested by the custodian, any of the following:

711.05(1)(d)1. 1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account.

711.05(1)(d)2. 2. Evidence linking the account to the user.

711.05(1)(d)3. 3. An affidavit stating that disclosure of the user’s digital property is reasonably necessary for administration of the estate.

711.05(1)(d)4. 4. A court order that includes any of the following findings:

711.05(1)(d)4.a. a. The user had a specific account with the custodian, identifiable by the information specified in subd. 1.

711.05(1)(d)4.b. b. The disclosure of the user’s digital property is reasonably necessary for administration of the estate.

711.05(2) (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:

711.05(2)(a) (a) The items described in sub. (1) (a) to (c).