Bill Text: IA HF262 | 2017-2018 | 87th General Assembly | Introduced
Bill Title: A bill for an act relating to a fiduciary’s access to digital assets and including applicability provisions.
Sponsorship: Partisan Bill (Republican 1)
Status: (Introduced - Dead) 2017-04-06 - Withdrawn. H.J. 918. [HF262 Detail]
Download: Iowa-2017-HF262-Introduced.html
House File 262 - Introduced HOUSE FILE BY HINSON A BILL FOR 1 An Act relating to a fiduciary's access to digital assets and 2 including applicability provisions. 3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: TLSB 2106YH (2) 87 jh/rj PAG LIN 1 1 Section 1. NEW SECTION. 633.90 Power of a fiduciary to 1 2 access digital assets. 1 3 Except as modified by a court order or limited in the 1 4 instrument creating the fiduciary relationship, a fiduciary may 1 5 exercise all rights and powers granted to such fiduciary under 1 6 chapter 638. 1 7 Sec. 2. Section 633A.4402, Code 2017, is amended by adding 1 8 the following new subsection: 1 9 NEW SUBSECTION. 33. Exercise all rights and powers granted 1 10 to a trustee under chapter 638. 1 11 Sec. 3. Section 633B.201, subsection 1, Code 2017, is 1 12 amended by adding the following new paragraph: 1 13 NEW PARAGRAPH. i. Exercise all rights and powers granted 1 14 to an agent under chapter 638. 1 15 Sec. 4. NEW SECTION. 638.1 Short title. 1 16 This chapter may be cited as the "Iowa Uniform Fiduciary 1 17 Access to Digital Assets Act". 1 18 Sec. 5. NEW SECTION. 638.2 Definitions. 1 19 As used in this chapter, unless the context otherwise 1 20 requires: 1 21 1. "Account" means an arrangement under a terms=of=service 1 22 agreement in which a custodian carries, maintains, processes, 1 23 receives, or stores a digital asset of the user or provides 1 24 goods or services to the user. 1 25 2. "Agent" means an attorney=in=fact granted authority under 1 26 a durable or nondurable power of attorney under chapter 633B. 1 27 3. "Carries" means engages in the transmission of an 1 28 electronic communication. 1 29 4. "Catalogue of electronic communications" means 1 30 information that identifies each person with which a user has 1 31 had an electronic communication, the time and date of the 1 32 communication, and the electronic address of the person. 1 33 5. "Conservator" means the same as defined in section 1 34 633.3. "Conservator" includes a person appointed to have the 1 35 custody and control of the property of a ward in a limited 2 1 conservatorship unless otherwise provided by order of the 2 2 court. 2 3 6. "Content of an electronic communication" means information 2 4 concerning the substance or meaning of the communication to 2 5 which all of the following apply: 2 6 a. The communication has been sent or received by a user. 2 7 b. The communication is in electronic storage by a 2 8 custodian providing an electronic=communication service to the 2 9 public or is carried or maintained by a custodian providing a 2 10 remote=computing service to the public. 2 11 c. The communication is not readily accessible to the 2 12 public. 2 13 7. "Court" means a district court in this state. 2 14 8. "Custodian" means a person that carries, maintains, 2 15 processes, receives, or stores a digital asset of a user. 2 16 9. "Designated recipient" means a person chosen by a user 2 17 using an online tool to administer digital assets of the user. 2 18 10. "Digital asset" means an electronic record in which an 2 19 individual has a right or interest. "Digital asset" does not 2 20 include an underlying asset or liability unless the asset or 2 21 liability is itself an electronic record. "Digital asset" does 2 22 not include health information or individually identifiable 2 23 health information as those terms are defined in the federal 2 24 Health Insurance Portability and Accountability Act of 1996, 2 25 Pub. L. No. 104=191. 2 26 11. "Electronic" means relating to technology having 2 27 electrical, digital, magnetic, wireless, optical, 2 28 electromagnetic, or similar capabilities. 2 29 12. "Electronic communication" has the meaning set forth in 2 30 18 U.S.C. {2510(12). 2 31 13. "Electronic=communication service" means a custodian 2 32 that provides to a user the ability to send or receive an 2 33 electronic communication. 2 34 14. "Fiduciary" means a personal representative, 2 35 conservator, guardian, agent, or trustee. 3 1 15. "Guardian" means the same as defined in section 633.3. 3 2 "Guardian" includes a person appointed to have the custody and 3 3 care of the person of the ward in a limited guardianship unless 3 4 otherwise provided by order of the court. 3 5 16. "Information" means data, text, images, videos, sounds, 3 6 codes, computer programs, software, databases, or the like. 3 7 17. "Online tool" means an electronic service provided by 3 8 a custodian that allows the user, in an agreement distinct 3 9 from the terms=of=service agreement between the custodian and 3 10 user, to provide directions for disclosure or nondisclosure of 3 11 digital assets to a third person. 3 12 18. "Person" means an individual, estate, business 3 13 or nonprofit entity, public corporation, government or 3 14 governmental subdivision, agency, instrumentality, or other 3 15 legal entity. 3 16 19. "Personal representative" means the same as defined in 3 17 section 633.3. 3 18 20. "Power of attorney" means the same as defined in section 3 19 633B.102. 3 20 21. "Principal" means the same as defined in section 3 21 633B.102. 3 22 22. "Record" means information that is inscribed on a 3 23 tangible medium or that is stored in an electronic or other 3 24 medium and is retrievable in perceivable form. 3 25 23. "Remote=computing service" means a custodian that 3 26 provides to a user computer=processing services or the storage 3 27 of digital assets by means of an electronic communications 3 28 system, as defined in 18 U.S.C. {2510(14). 3 29 24. "Terms=of=service agreement" means an agreement that 3 30 controls the relationship between a user and a custodian. 3 31 25. "Trustee" means the same as defined in section 633.3 or 3 32 633A.1102. 3 33 26. "User" means a person that has an account with a 3 34 custodian. 3 35 27. "Ward" means an individual for whom a conservator or 4 1 guardian has been appointed. "Ward" includes an individual 4 2 for whom an application for the appointment of a conservator 4 3 or guardian is pending and for which a court order authorizing 4 4 access under this chapter has been granted. 4 5 28. "Will" means the same as defined in section 633.3. 4 6 Sec. 6. NEW SECTION. 638.3 Applicability. 4 7 1. This chapter applies to all of the following: 4 8 a. A fiduciary acting under a will or power of attorney 4 9 executed before, on, or after the effective date of this Act. 4 10 b. A personal representative acting for a decedent who died 4 11 before, on, or after the effective date of this Act. 4 12 c. A conservator or guardian acting for a ward on or after 4 13 the effective date of this Act. 4 14 d. A trustee acting under a trust created before, on, or 4 15 after the effective date of this Act. 4 16 2. This chapter applies to a custodian if the user resides 4 17 in this state or resided in this state at the time of the user's 4 18 death. 4 19 3. This chapter does not apply to a digital asset of an 4 20 employer used by an employee in the ordinary course of the 4 21 employer's business. 4 22 Sec. 7. NEW SECTION. 638.4 User direction for disclosure 4 23 of digital assets. 4 24 1. A user may use an online tool to direct the custodian to 4 25 disclose to the designated recipient or not to disclose some 4 26 or all of the user's digital assets, including the content 4 27 of electronic communications. If the online tool allows the 4 28 user to modify or delete a direction at any time, a direction 4 29 regarding disclosure using an online tool overrides a contrary 4 30 direction by the user in a will, trust, power of attorney, or 4 31 other record. 4 32 2. If a user has not used an online tool to give direction 4 33 under subsection 1, or if the custodian has not provided an 4 34 online tool, the user may allow or prohibit in a will, trust, 4 35 power of attorney, or other record, disclosure to a fiduciary 5 1 of some or all of the user's digital assets, including the 5 2 content of electronic communications sent or received by the 5 3 user. 5 4 3. A user's direction under subsection 1 or 2 overrides a 5 5 contrary provision in a terms=of=service agreement that does 5 6 not require the user to act affirmatively and distinctly from 5 7 the user's assent to the terms of service. 5 8 Sec. 8. NEW SECTION. 638.5 Terms=of=service agreement. 5 9 1. This chapter does not change or impair a right of a 5 10 custodian or a user under a terms=of=service agreement to 5 11 access and use digital assets of the user. 5 12 2. This chapter does not give a fiduciary or a designated 5 13 recipient any new or expanded rights other than those held by 5 14 the user for whom, or for whose estate, the fiduciary or a 5 15 designated recipient acts or represents. 5 16 3. A fiduciary's or designated recipient's access to 5 17 digital assets may be modified or eliminated by a user, by 5 18 federal law, or by a terms=of=service agreement if the user has 5 19 not provided direction under section 638.4. 5 20 Sec. 9. NEW SECTION. 638.6 Procedure for disclosing digital 5 21 assets. 5 22 1. When disclosing digital assets of a user under this 5 23 chapter, the custodian may at its sole discretion do any of the 5 24 following: 5 25 a. Grant a fiduciary or designated recipient full access to 5 26 the user's account. 5 27 b. Grant a fiduciary or designated recipient partial access 5 28 to the user's account sufficient to perform the tasks with 5 29 which the fiduciary or designated recipient is charged. 5 30 c. Provide a fiduciary or designated recipient a copy in 5 31 a record of any digital asset that, on the date the custodian 5 32 received the request for disclosure, the user could have 5 33 accessed if the user were alive, was competent, and had access 5 34 to the account. 5 35 2. A custodian may assess a reasonable administrative 6 1 charge for the cost of disclosing digital assets under this 6 2 chapter. 6 3 3. A custodian need not disclose under this chapter a 6 4 digital asset deleted by a user. 6 5 4. If a user directs or a fiduciary requests a custodian to 6 6 disclose some, but not all, of the user's digital assets, the 6 7 custodian need not disclose the assets if segregation of the 6 8 assets would impose an undue burden on the custodian. If the 6 9 custodian believes the direction or request imposes an undue 6 10 burden, the custodian or fiduciary may seek an order from the 6 11 court to disclose any of the following: 6 12 a. A subset of the user's digital assets limited by date. 6 13 b. All of the user's digital assets to the fiduciary or 6 14 designated recipient. 6 15 c. None of the user's digital assets. 6 16 d. All of the user's digital assets to the court for review 6 17 in camera. 6 18 Sec. 10. NEW SECTION. 638.7 Disclosure of content of 6 19 electronic communications of deceased user. 6 20 If a deceased user consented or a court directs disclosure 6 21 of the contents of electronic communications of the user, the 6 22 custodian shall disclose to the personal representative of the 6 23 estate of the user the content of an electronic communication 6 24 sent or received by the user if the personal representative 6 25 gives the custodian all of the following: 6 26 1. A written request for disclosure in physical or 6 27 electronic form. 6 28 2. A certified copy of the death certificate of the user. 6 29 3. A certified copy of the letters of appointment of the 6 30 personal representative, an original affidavit made pursuant 6 31 to section 633.356, or a file=stamped copy of the court order 6 32 authorizing the personal representative to administer the 6 33 user's estate. 6 34 4. Unless the user provided direction using an online tool, 6 35 a copy of the user's will, trust, power of attorney, or other 7 1 record evidencing the user's consent to disclosure of the 7 2 content of electronic communications. 7 3 5. If requested by the custodian, any of the following: 7 4 a. A number, username, address, or other unique subscriber 7 5 or account identifier assigned by the custodian to identify the 7 6 user's account. 7 7 b. Evidence linking the account to the user. 7 8 c. A finding by the court of any of the following: 7 9 (1) The user had a specific account with the custodian, 7 10 identifiable by the information specified in paragraph "a". 7 11 (2) Disclosure of the content of electronic communications 7 12 of the user would not violate 18 U.S.C. {2701 et seq., 47 7 13 U.S.C. {222, or other applicable law. 7 14 (3) Unless the user provided direction using an online 7 15 tool, that the user consented to disclosure of the content of 7 16 electronic communications. 7 17 (4) Disclosure of the content of electronic communications 7 18 of the user is reasonably necessary for administration of the 7 19 estate. 7 20 Sec. 11. NEW SECTION. 638.8 Disclosure of other digital 7 21 assets of deceased user. 7 22 Unless the user prohibited disclosure of digital assets or 7 23 the court directs otherwise, a custodian shall disclose to the 7 24 personal representative of the estate of a deceased user a 7 25 catalogue of electronic communications sent or received by the 7 26 user and digital assets, other than the content of electronic 7 27 communications, of the user, if the personal representative 7 28 gives the custodian all of the following: 7 29 1. A written request for disclosure in physical or 7 30 electronic form. 7 31 2. A certified copy of the death certificate of the user. 7 32 3. A certified copy of the letters of appointment of the 7 33 personal representative, an original affidavit made pursuant 7 34 to section 633.356, or a file=stamped copy of the court order 7 35 authorizing the personal representative to administer the 8 1 user's estate. 8 2 4. If requested by the custodian, any of the following: 8 3 a. A number, username, address, or other unique subscriber 8 4 or account identifier assigned by the custodian to identify the 8 5 user's account. 8 6 b. Evidence linking the account to the user. 8 7 c. An affidavit stating that disclosure of the user's 8 8 digital assets is reasonably necessary for administration of 8 9 the estate. 8 10 d. A finding by the court of any of the following: 8 11 (1) The user had a specific account with the custodian, 8 12 identifiable by the information specified in paragraph "a". 8 13 (2) Disclosure of the user's digital assets is reasonably 8 14 necessary for administration of the estate. 8 15 Sec. 12. NEW SECTION. 638.9 Disclosure of content of 8 16 electronic communications of principal. 8 17 To the extent a power of attorney expressly grants an agent 8 18 authority over the content of electronic communications sent 8 19 or received by the principal and unless directed otherwise by 8 20 the principal or the court, a custodian shall disclose to the 8 21 agent the content if the agent gives the custodian all of the 8 22 following: 8 23 1. A written request for disclosure in physical or 8 24 electronic form. 8 25 2. An original or copy of the power of attorney expressly 8 26 granting the agent authority over the content of electronic 8 27 communications of the principal. 8 28 3. A certification by the agent, under penalty of perjury, 8 29 that the power of attorney is in effect. The certification 8 30 form provided in section 633B.302 shall satisfy the requirement 8 31 of this subsection. 8 32 4. If requested by the custodian, any of the following: 8 33 a. A number, username, address, or other unique subscriber 8 34 or account identifier assigned by the custodian to identify the 8 35 principal's account. 9 1 b. Evidence linking the account to the principal. 9 2 Sec. 13. NEW SECTION. 638.10 Disclosure of other digital 9 3 assets of principal. 9 4 Unless otherwise ordered by the court, directed by the 9 5 principal, or provided by a power of attorney, a custodian 9 6 shall disclose to an agent with specific authority over digital 9 7 assets or general authority to act on behalf of a principal 9 8 a catalogue of electronic communications sent or received by 9 9 the principal and digital assets, other than the content of 9 10 electronic communications, of the principal if the agent gives 9 11 the custodian all of the following: 9 12 1. A written request for disclosure in physical or 9 13 electronic form. 9 14 2. An original or a copy of the power of attorney that gives 9 15 the agent specific authority over digital assets or general 9 16 authority to act on behalf of the principal. 9 17 3. A certification by the agent, under penalty of perjury, 9 18 that the power of attorney is in effect. 9 19 4. If requested by the custodian, any of the following: 9 20 a. A number, username, address, or other unique subscriber 9 21 or account identifier assigned by the custodian to identify the 9 22 principal's account. 9 23 b. Evidence linking the account to the principal. 9 24 Sec. 14. NEW SECTION. 638.11 Disclosure of digital assets 9 25 held in trust when trustee is original user. 9 26 Unless otherwise ordered by the court or provided in a trust, 9 27 a custodian shall disclose to a trustee that is an original 9 28 user of an account any digital asset of the account held in 9 29 trust, including a catalogue of electronic communications of 9 30 the trustee and the content of electronic communications. 9 31 Sec. 15. NEW SECTION. 638.12 Disclosure of contents of 9 32 electronic communications held in trust when trustee not original 9 33 user. 9 34 Unless otherwise ordered by the court, directed by the user, 9 35 or provided in a trust, a custodian shall disclose to a trustee 10 1 that is not an original user of an account the content of an 10 2 electronic communication sent or received by an original or 10 3 successor user and carried, maintained, processed, received, 10 4 or stored by the custodian in the account of the trust if the 10 5 trustee gives the custodian all of the following: 10 6 1. A written request for disclosure in physical or 10 7 electronic form. 10 8 2. A certified copy of the trust instrument or a 10 9 certification of trust under section 633A.4604 that 10 10 includes consent to disclosure of the content of electronic 10 11 communications to the trustee. 10 12 3. A certification by the trustee, under penalty of perjury, 10 13 that the trust exists and the trustee is a currently acting 10 14 trustee of the trust. 10 15 4. If requested by the custodian, any of the following: 10 16 a. A number, username, address, or other unique subscriber 10 17 or account identifier assigned by the custodian to identify the 10 18 trust's account. 10 19 b. Evidence linking the account to the trust. 10 20 Sec. 16. NEW SECTION. 638.13 Disclosure of other digital 10 21 assets held in trust when trustee not original user. 10 22 Unless otherwise ordered by the court, directed by the 10 23 user, or provided in a trust, a custodian shall disclose, to a 10 24 trustee that is not an original user of an account, a catalogue 10 25 of electronic communications sent or received by an original 10 26 or successor user and stored, carried, or maintained by the 10 27 custodian in an account of the trust and any digital assets, 10 28 other than the content of electronic communications, in which 10 29 the trust has a right or interest if the trustee gives the 10 30 custodian all of the following: 10 31 1. A written request for disclosure in physical or 10 32 electronic form. 10 33 2. A certified copy of the trust instrument or a 10 34 certification of trust under section 633A.4604. 10 35 3. A certification by the trustee, under penalty of perjury, 11 1 that the trust exists and the trustee is a currently acting 11 2 trustee of the trust. 11 3 4. If requested by the custodian, any of the following: 11 4 a. A number, username, address, or other unique subscriber 11 5 or account identifier assigned by the custodian to identify the 11 6 trust's account. 11 7 b. Evidence linking the account to the trust. 11 8 Sec. 17. NEW SECTION. 638.14 Disclosure of digital assets 11 9 to conservator or guardian of a ward. 11 10 1. After an opportunity for a hearing to all interested 11 11 parties, the court may grant a conservator or guardian access 11 12 to the digital assets of a ward. 11 13 2. Unless otherwise ordered by the court or directed by the 11 14 user, a custodian shall disclose to a conservator or guardian 11 15 the catalogue of electronic communications sent or received 11 16 by a ward and any digital assets, other than the content of 11 17 electronic communications, in which the ward has a right or 11 18 interest if the conservator or guardian gives the custodian all 11 19 of the following: 11 20 a. A written request for disclosure in physical or 11 21 electronic form. 11 22 b. A file=stamped copy of the court order that gives the 11 23 conservator or guardian authority over the digital assets of 11 24 the ward. 11 25 c. If requested by the custodian, any of the following: 11 26 (1) A number, username, address, or other unique subscriber 11 27 or account identifier assigned by the custodian to identify the 11 28 account of the ward. 11 29 (2) Evidence linking the account to the ward. 11 30 3. If the conservatorship or guardianship is not limited, 11 31 the conservator or guardian may request a custodian of the 11 32 digital assets of the ward to suspend or terminate an account 11 33 of the ward for good cause. A request made under this section 11 34 must be accompanied by a file=stamped copy of the court order 11 35 establishing the conservatorship or guardianship. 12 1 Sec. 18. NEW SECTION. 638.15 Fiduciary duty and authority. 12 2 1. The legal duties imposed on a fiduciary charged with 12 3 managing tangible property apply to the management of digital 12 4 assets, including all of the following: 12 5 a. The duty of care. 12 6 b. The duty of loyalty. 12 7 c. The duty of confidentiality. 12 8 2. All of the following apply to a fiduciary's or a 12 9 designated recipient's authority with respect to a digital 12 10 asset of a user: 12 11 a. Except as otherwise provided in section 638.4, the 12 12 fiduciary's or designated recipient's authority is subject to 12 13 the applicable terms of service. 12 14 b. The fiduciary's or designated recipient's authority is 12 15 subject to other applicable law, including copyright law. 12 16 c. In the case of a fiduciary, the fiduciary's authority is 12 17 limited by the scope of the fiduciary's duties. 12 18 d. The fiduciary's or designated recipient's authority shall 12 19 not be used to impersonate the user. 12 20 3. A fiduciary with authority over the property of a 12 21 decedent, ward, principal, or settlor has the right to access 12 22 any digital asset in which the decedent, ward, principal, or 12 23 settlor had a right or interest and that is not held by a 12 24 custodian or subject to a terms=of=service agreement. 12 25 4. A fiduciary acting within the scope of the fiduciary's 12 26 duties is an authorized user of the property of the decedent, 12 27 ward, principal, or settlor for the purpose of applicable 12 28 computer=fraud and unauthorized=computer=access laws, including 12 29 section 716.6B. 12 30 5. A fiduciary with authority over the tangible, personal 12 31 property of a decedent, ward, principal, or settlor possesses 12 32 all of the following authority: 12 33 a. Has the right to access the property and any digital 12 34 asset stored in the property. 12 35 b. Is an authorized user for the purpose of computer=fraud 13 1 and unauthorized=computer=access laws, including section 13 2 716.6B. 13 3 6. A custodian may disclose information in an account to 13 4 a fiduciary of the user when the information is required to 13 5 terminate an account used to access digital assets licensed to 13 6 the user. 13 7 7. A fiduciary of a user may request a custodian to 13 8 terminate the user's account. A request for termination must 13 9 be in writing, in either physical or electronic form, and 13 10 accompanied by all of the following: 13 11 a. If the user is deceased, a certified copy of the death 13 12 certificate of the user. 13 13 b. A certified copy of the letters of appointment of the 13 14 personal representative, an original affidavit made pursuant 13 15 to section 633.356, a file=stamped copy of the court order 13 16 authorizing the personal representative to administer the 13 17 user's estate, power of attorney, or trust, including a 13 18 certification of trust, giving the fiduciary authority over the 13 19 account. 13 20 c. If requested by the custodian, any of the following: 13 21 (1) A number, username, address, or other unique subscriber 13 22 or account identifier assigned by the custodian to identify the 13 23 user's account. 13 24 (2) Evidence linking the account to the user. 13 25 (3) A finding by the court that the user had a specific 13 26 account with the custodian, identifiable by the information 13 27 specified in subparagraph (1). 13 28 Sec. 19. NEW SECTION. 638.16 Custodian compliance and 13 29 immunity. 13 30 1. Not later than sixty days after receipt of the 13 31 information required under sections 638.7 through 638.14, a 13 32 custodian shall comply with a request under this chapter from a 13 33 fiduciary or designated recipient to disclose digital assets or 13 34 terminate an account. If the custodian fails to comply, the 13 35 fiduciary or designated recipient may apply to the court for 14 1 an order directing compliance. 14 2 2. An order under subsection 1 directing compliance must 14 3 contain a finding that compliance is not in violation of 18 14 4 U.S.C. {2702. 14 5 3. A custodian may notify the user that a request for 14 6 disclosure or to terminate an account was made under this 14 7 chapter. 14 8 4. A custodian may deny a request under this chapter from 14 9 a fiduciary or designated recipient for disclosure of digital 14 10 assets or to terminate an account if the custodian is aware of 14 11 any lawful access to the account following the receipt of the 14 12 fiduciary's request. 14 13 5. This chapter does not limit a custodian's ability 14 14 to obtain or require a fiduciary or designated recipient 14 15 requesting disclosure or termination under this chapter to 14 16 obtain a court order which finds all of the following: 14 17 a. That the account belongs to the user. 14 18 b. That there is sufficient consent from the user to support 14 19 the requested disclosure. 14 20 c. Any specific factual finding required by any applicable 14 21 law other than this chapter. 14 22 6. A custodian and the custodian's officers, employees, and 14 23 agents are immune from liability for an act or omission done in 14 24 good faith in compliance with this chapter. 14 25 Sec. 20. NEW SECTION. 638.17 Uniformity of application and 14 26 construction. 14 27 In applying and construing this chapter, consideration must 14 28 be given to the need to promote uniformity of the law with 14 29 respect to this chapter's subject matter among states that 14 30 enact the revised uniform fiduciary access to digital assets 14 31 Act. 14 32 Sec. 21. NEW SECTION. 638.18 Relation to Electronic 14 33 Signatures in Global and National Commerce Act. 14 34 This chapter modifies, limits, or supersedes the federal 14 35 Electronic Signatures in Global and National Commerce Act, 15 15 1 U.S.C. {7001 et seq., but does not modify, limit, or supersede 15 2 section 101(c) of that Act, 15 U.S.C. {7001(c), or authorize 15 3 electronic delivery of any of the notices described in section 15 4 103(b) of that Act, 15 U.S.C. {7003(b). 15 5 EXPLANATION 15 6 The inclusion of this explanation does not constitute agreement with 15 7 the explanation's substance by the members of the general assembly. 15 8 This bill relates to a fiduciary's access to digital assets 15 9 and includes applicability provisions. 15 10 The bill defines "digital asset" as an electronic record in 15 11 which an individual has a right or interest. "Digital asset" 15 12 does not include an underlying asset or liability unless the 15 13 asset or liability is itself an electronic record. "Digital 15 14 asset" does not include health information or individually 15 15 identifiable health information as those terms are defined in 15 16 the federal Health Insurance Portability and Accountability 15 17 Act. "Fiduciary" is defined as an agent under a power of 15 18 attorney pursuant to Code chapter 633B, a conservator, 15 19 guardian, personal representative, or trustee as each is 15 20 defined under Code section 633.3, or a trustee as defined in 15 21 Code section 633A.1102. "Custodian" is defined as a person 15 22 that carries, maintains, processes, receives, or stores a 15 23 digital asset of a user. "User" is defined as a person that has 15 24 an account with a custodian. 15 25 The bill provides that a user may direct a custodian to 15 26 disclose to the designated recipient or not to disclose 15 27 the user's digital assets to a fiduciary through an online 15 28 tool, a will, trust, power of attorney, or other record. A 15 29 terms=of=service agreement which the user agreed to may also 15 30 provide whether the custodian shall disclose the user's digital 15 31 assets to a fiduciary. 15 32 The bill provides that a custodian shall disclose the 15 33 electronic communications of a deceased user to the personal 15 34 representative of the estate if the personal representative 15 35 provides the custodian a written request for disclosure, 16 1 a certified copy of the death certificate, letters of 16 2 appointment, and documentation evidencing the user's consent 16 3 to disclosure of the content of electronic communications, 16 4 unless the user provided such direction in an online 16 5 tool. A custodian shall disclose other digital assets of a 16 6 deceased user to the personal representative if the personal 16 7 representative provides a written request for disclosure, 16 8 a certified copy of the death certificate, and letters of 16 9 appointment. 16 10 The bill provides that if a power of attorney expressly 16 11 grants an agent authority over the content of electronic 16 12 communications, a custodian shall disclose such content if 16 13 the agent provides to the custodian a written request for 16 14 disclosure, a copy of the power of attorney expressly granting 16 15 the agent authority over the content of the principal's 16 16 electronic communications, and a certification by the agent 16 17 that the power of attorney is in effect. Where a power of 16 18 attorney grants an agent specific authority over digital 16 19 assets or general authority to act on behalf of the principal, 16 20 the custodian shall disclose a catalogue of electronic 16 21 communications sent or received by the principal and digital 16 22 assets, other than the content of electronic communications, 16 23 if the agent provides to the custodian a written request for 16 24 disclosure, a copy of the power of attorney giving the agent 16 25 specific authority over digital assets or general authority 16 26 to act on behalf of the principal, and a certification by the 16 27 agent that the power of attorney is in effect. 16 28 The bill provides that a custodian shall disclose to a 16 29 trustee that is an original user of an account any digital 16 30 asset of the account held in trust. The bill provides that 16 31 unless otherwise ordered by the court, directed by the user, or 16 32 provided in a trust, a custodian shall disclose to a trustee 16 33 that is not an original user the content of an electronic 16 34 communication sent or received by a user if the trustee gives 16 35 the custodian a written request, a certified copy of the trust 17 1 that includes consent to disclose the content of electronic 17 2 communications to the trustee, and a certification by the 17 3 trustee that the trust exists and the trustee is a currently 17 4 acting trustee. A custodian shall disclose to a trustee 17 5 digital assets in which the trust has an interest and that 17 6 are not electronic communications if the trustee gives the 17 7 custodian a written request, a certified copy of the trust 17 8 instrument or certification, and a certification by the trustee 17 9 that the trust exists and the trustee is a currently acting 17 10 trustee. 17 11 The bill provides that after an opportunity for a hearing, 17 12 the court may grant a conservator or guardian access to 17 13 a ward's digital assets. The bill also provides that a 17 14 custodian shall disclose to a conservator or guardian the 17 15 catalogue of electronic communications of a ward and any of 17 16 the ward's other digital assets, other than the content of 17 17 electronic communications, if the conservator or guardian 17 18 provides the custodian with a written request for disclosure 17 19 and a copy of the court order that gives the conservator or 17 20 guardian authority over the ward's digital assets. If the 17 21 conservatorship or guardianship is not limited, the conservator 17 22 or guardian may request a custodian to suspend or terminate an 17 23 account of the ward for good cause. 17 24 The bill imposes on a fiduciary the duties of care, loyalty, 17 25 and confidentiality and specifies a fiduciary's authority with 17 26 respect to digital assets of a user. 17 27 The bill provides that a custodian has 60 days to comply with 17 28 a request under the new Code chapter. If the custodian fails 17 29 to comply, the fiduciary may apply for a court order directing 17 30 compliance. 17 31 The bill provides that a custodian and the custodian's 17 32 officers, employees, and agents are immune from liability for 17 33 an act or omission done in good faith in compliance with the 17 34 new Code chapter. 17 35 The bill provides applicability provisions. The bill 18 1 applies to a fiduciary acting under a will or a power of 18 2 attorney executed before, on, or after the effective date of 18 3 the bill. The bill applies to a personal representative acting 18 4 for a decedent who dies before, on, or after the effective date 18 5 of the bill. The bill applies to a conservator or guardian 18 6 acting for a ward on or after the effective date of the bill. 18 7 The bill applies to a trustee acting under a trust created 18 8 before, on, or after the effective date of the bill. 18 9 The bill makes conforming changes. LSB 2106YH (2) 87 jh/rj
