AN ACT CONCERNING THE CONNECTICUT UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. (NEW) (Effective October 1, 2015) Sections 1 to 12, inclusive, of this act may be cited as the "Connecticut Uniform Fiduciary Access to Digital Assets Act".

Sec. 2. (NEW) (Effective October 1, 2015) As used in sections 1 to 12, inclusive, of this act:

(1) "Account holder" means (A) a person that has entered into a terms of service agreement with a custodian, or (B) a fiduciary for such person;

(2) "Agent" means an attorney in fact who is granted authority under a durable or nondurable power of attorney;

(3) "Carries" means engages in the transmission of electronic communications;

(4) "Catalog of electronic communications" means information that identifies each person with which an account holder has had an electronic communication, the time and date of the communication, and the electronic address of the person;

(5) "Conservator" means (A) a conservator, as defined in subsection (a) of section 45a-644 of the general statutes, who is appointed by a court to manage the estate of a living adult individual, (B) a conservator granted voluntary representation of an individual pursuant to section 45a-646 of the general statutes, or (C) a temporary conservator appointed pursuant to section 45a-654 of the general statutes;

(6) "Conserved person" means an individual for whom a conservator has been appointed. "Conserved person" includes a respondent, as defined in section 45a-644 of the general statutes, for whom an application for the appointment of a conservator is pending;

(7) "Content of an electronic communication" means information concerning the substance or meaning of the communication which:

(A) Has been sent or received by an account holder;

(B) Is maintained in electronic storage by a custodian providing an electronic communication service to the public or is carried or maintained by a custodian providing a remote computing service to the public; and

(C) Is not readily accessible to the public;

(8) "Court" means a court of competent jurisdiction, including, but not limited to, the Probate Court or the Superior Court;

(9) "Custodian" means a person that carries, maintains, processes, receives or stores a digital asset of an account holder;

(10) "Digital asset" means a record that is electronic. "Digital asset" does not include an underlying digital asset or liability unless the digital asset or liability is itself a record that is electronic;

(11) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical or electromagnetic capabilities or similar capabilities;

(12) "Electronic communication" has the same meaning as provided in 18 USC 2510(12), as amended from time to time;

(13) "Electronic communication service" means a custodian that provides to an account holder the ability to send or receive an electronic communication;

(14) "Executor" means an executor, administrator, special administrator or temporary administrator of an estate or any person who performs substantially the same function as such executor, administrator, special administrator or temporary administrator under the laws of this state other than sections 1 to 12, inclusive, of this act;

(15) "Fiduciary" means an original, additional or successor executor, or a conservator, agent or trustee;

(16) "Information" means data, text, images, videos, sounds, codes, computer programs, software, databases or the like;

(17) "Person" means an individual, estate, trust, business or nonprofit entity, public corporation, government or governmental subdivision, agency or instrumentality or other legal entity;

(18) "Power of attorney" means a record that grants an agent authority to act in the place of a principal;

(19) "Principal" means an individual who grants authority to an agent in a power of attorney;

(20) "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;

(21) "Remote computing service" means a custodian that provides to an account holder computer processing services or the storage of digital assets by means of an electronic communications system, as defined in 18 USC 2510(14), as amended from time to time;

(22) "Terms of service agreement" means an agreement that controls the relationship between an account holder and a custodian;

(23) "Trustee" means a fiduciary with legal title to property under a will or pursuant to an agreement or declaration that creates a beneficial interest in another person. "Trustee" includes a successor trustee; and

(24) "Will" includes a codicil, a testamentary instrument that only appoints an executor and an instrument that revokes or revises a testamentary instrument.

Sec. 3. (NEW) (Effective October 1, 2015) (a) Sections 1 to 12, inclusive, of this act apply to:

(1) An agent acting under a power of attorney executed before, on or after October 1, 2015;

(2) An executor acting for a decedent who died before, on or after October 1, 2015;

(3) A conservator acting in a conservatorship proceeding, whether pending in a court or commenced before, on or after October 1, 2015;

(4) A trustee acting under a trust created before, on or after October 1, 2015; and

(5) Any proceeding filed in a court prior to October 1, 2015, pursuant to section 45a-334a of the general statutes, revision of 1958, revised to January 1, 2015, that is pending on October 1, 2015.

(b) Sections 1 to 12, inclusive, of this act do not apply to a digital asset of an employer used by an employee in the ordinary course of the employer's business.

Sec. 4. (NEW) (Effective October 1, 2015) Subject to the provisions of subsection (b) of section 8 of this act and unless otherwise ordered by the court or provided in the will of a decedent, the executor of the decedent has the right to access:

(1) The content of an electronic communication that the custodian is permitted to divulge under the Electronic Communications Privacy Act, 18 USC 2702(b), as amended from time to time;

(2) Any catalog of electronic communications sent or received by the decedent; and

(3) Any other digital asset in which at death the decedent had a right or interest.

Sec. 5. (NEW) (Effective October 1, 2015) Subject to the provisions of subsection (b) of section 8 of this act, the court, after notice and personal service in the manner prescribed under subsection (a) of section 45a-649 of the general statutes for matters under chapter 802h of the general statutes, and an opportunity for a hearing in the manner prescribed in sections 45a-645a to 45a-645c, inclusive, of the general statutes, a court may grant a conservator the right to access:

(1) The content of an electronic communication that the custodian is permitted to divulge under the Electronic Communications Privacy Act, 18 USC 2702(b), as amended from time to time;

(2) Any catalog of electronic communications sent or received by the conserved person; and

(3) Any other digital asset in which the conserved person has a right or interest.

Sec. 6. (NEW) (Effective October 1, 2015) (a) To the extent a power of attorney expressly grants an agent authority over the content of an electronic communication of the principal and subject to the provisions of subsection (b) of section 8 of this act, the agent has the right to access the content of an electronic communication that the custodian is permitted to divulge under the Electronic Communications Privacy Act, 18 USC 2702(b), as amended from time to time.

(b) Subject to the provisions of subsection (b) of section 8 of this act and unless otherwise ordered by the court or provided by a power of attorney, an agent has the right to access:

(1) Any catalog of electronic communications sent or received by the principal; and

(2) Any other digital asset in which the principal has a right or interest.

Sec. 7. (NEW) (Effective October 1, 2015) (a) Subject to the provisions of subsection (b) of section 8 of this act and unless otherwise ordered by the court or provided in a trust instrument, a trustee that is an original account holder has the right to access any digital asset held in trust, including any catalog of electronic communications of the trustee and the content of an electronic communication.

(b) Subject to the provisions of subsection (b) of section 8 of this act and unless otherwise ordered by the court or provided in a trust instrument, a trustee that is not an original account holder has the right to access:

(1) The content of an electronic communication that the custodian is permitted to divulge under the Electronic Communications Privacy Act, 18 USC 2702(b), as amended from time to time;

(2) Any catalog of electronic communications sent or received by the original or any successor account holder; and

(3) Any other digital asset in which the original or any successor account holder has a right or interest.

Sec. 8. (NEW) (Effective October 1, 2015) (a) A fiduciary that is an account holder or has the right under sections 1 to 12, inclusive, of this act to access a digital asset of an account holder:

(1) Subject to the terms of service agreement, copyright law and other applicable law, may take any action concerning the digital asset to the extent of the account holder's authority and the fiduciary's power under the law of this state other than sections 1 to 12, inclusive, of this act;

(2) Has, for the purpose of applicable electronic privacy laws, the lawful consent of the account holder for the custodian to divulge the content of an electronic communication to the fiduciary; and

(3) Is, for the purpose of applicable computer fraud and unauthorized computer access laws, including, but not limited to, section 53a-251 of the general statutes, an authorized user of such digital asset and is authorized to access such digital asset.

(b) Unless an account holder, after October 1, 2015, agrees to a provision in a terms of service agreement that limits a fiduciary's access to a digital asset of the account holder by an affirmative act separate from the account holder's assent to other provisions of the agreement:

(1) The provision is void as against the strong public policy of this state; and

(2) The fiduciary's access under sections 1 to 12, inclusive, of this act to a digital asset does not violate the terms of service agreement even if the agreement requires notice of a change in the account holder's status.

(c) A choice of law provision in a terms of service agreement is unenforceable against a fiduciary acting under sections 1 to 12, inclusive, of this act to the extent the provision designates law that enforces a limitation on a fiduciary's access to a digital asset, and the limitation is void under subsection (b) of this section.

(d) As to tangible personal property capable of receiving, storing, processing or sending a digital asset, a fiduciary with authority over the property of a decedent, conserved person, principal or settlor:

(1) Has the right to access the tangible personal property and any digital asset stored in the tangible personal property; and

(2) Is an authorized user of such digital asset and is authorized to access such digital asset for the purposes of any applicable computer fraud and unauthorized computer access laws, including, but not limited to, section 53a-251 of the general statutes.

Sec. 9. (NEW) (Effective October 1, 2015) (a) If a fiduciary with a right under sections 1 to 12, inclusive, of this act to access a digital asset of an account holder complies with subsection (b) of this section, the custodian shall comply with the fiduciary's request in a record for:

(1) Access to the digital asset;

(2) Control of the digital asset; and

(3) A copy of the digital asset to the extent permitted by copyright law.

(b) If a request under subsection (a) of this section is made by:

(1) An executor with the right of access under section 4 of this act, the request must be accompanied by a certificate of appointment of the executor or court order;

(2) A conservator with the right of access under section 5 of this act, the request must be accompanied by a court certified order that gives the conservator authority over the digital asset;

(3) An agent with the right of access under section 6 of this act, the request must be accompanied by an original or a copy of the power of attorney that authorizes the agent to exercise authority over the digital asset and a certification of the agent, under penalty of perjury, that the power of attorney is in effect; and

(4) A trustee with the right of access under section 7 of this act, the request must be accompanied by an original or a copy of the trust instrument or a certification of the trust under subsection (d) of this section that authorizes the trustee to exercise authority over the digital asset.

(c) A custodian shall comply with a request made under subsection (a) of this section not later than sixty days after receipt of the request. If the custodian fails to comply with such request, the fiduciary may apply to the court for an order directing compliance.

(d) Instead of furnishing a copy of the trust instrument under subdivision (4) of subsection (b) of this section, the trustee may provide a certification of trust. The certification:

(1) Must contain the following information:

(A) That the trust exists and the date the trust instrument was executed;

(B) The identity of the settlor;

(C) The identity and address of the trustee;

(D) A statement that there is nothing inconsistent in the trust with respect to the trustee's powers over digital assets;

(E) A statement of whether the trust is revocable and the identity of any person holding a power to revoke the trust;

(F) A statement of whether a cotrustee has authority to sign or otherwise authenticate; and

(G) Whether all or fewer than all cotrustees are required to exercise powers of the trustee;

(2) Must be signed or otherwise authenticated by a trustee;

(3) Must state that the trust has not been revoked, modified or amended in a manner that would cause the representations contained in the certification of trust to be incorrect; and

(4) Need not contain the dispositive terms of the trust.

(e) A custodian that receives a certification under subsection (d) of this section may require the trustee to provide copies of excerpts from the original trust instrument and later amendments designating the trustee and conferring on the trustee the power to act in the pending transaction.

(f) A custodian that acts in reliance on a certification under subsection (d) of this section without knowledge that the representations contained in the certification are incorrect is not liable to any person for so acting and may assume without inquiry the existence of facts stated in the certification.

(g) A person that in good faith enters into a transaction in reliance on a certification under subsection (d) of this section may enforce the transaction against the trust property as if the representations contained in the certification were correct.

(h) A person that demands the trust instrument in addition to a certification under subsection (d) of this section or excerpts under subsection (e) of this section is liable for damages, including attorneys' fees, if the court determines that the person did not act in good faith in demanding the instrument.

(i) This section does not limit the right of a person to obtain a copy of a trust instrument in a court proceeding concerning the trust.

Sec. 10. (NEW) (Effective October 1, 2015) A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good faith in compliance with sections 1 to 12, inclusive, of this act.

Sec. 11. (NEW) (Effective October 1, 2015) In applying and construing sections 1 to 12, inclusive, of 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.

Sec. 12. (NEW) (Effective October 1, 2015) Sections 1 to 12, inclusive, of this act modify, limit or supersede 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 said act, 15 USC 7001(c) or authorize electronic delivery of any of the notices described in Section 103(b) of said act, 15 USC 7003(b).

Sec. 13. Section 45a-334a of the general statutes is repealed. (Effective October 1, 2015)

Statement of Purpose:

To adopt the Connecticut Uniform Fiduciary Access to Digital Assets Act.

[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]