Bill Text: IA SSB1238 | 2015-2016 | 86th General Assembly | Introduced


Bill Title: A study bill for an act relating to fiduciary access to digital assets and including applicability provisions.

Spectrum: Unknown

Status: (Introduced - Dead) 2015-03-03 - 12:30PM; Senate Lobbyist Lounge Judiciary. [SSB1238 Detail]

Download: Iowa-2015-SSB1238-Introduced.html
Senate Study Bill 1238 - Introduced SENATE FILE _____ BY (PROPOSED COMMITTEE ON JUDICIARY BILL BY CHAIRPERSON SODDERS) A BILL FOR An Act relating to fiduciary access to digital assets and 1 including applicability provisions. 2 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 3 TLSB 2368XC (9) 86 jh/rj
S.F. _____ Section 1. NEW SECTION . 633.90 Power of a fiduciary to 1 access digital assets and digital accounts. 2 Except as modified by a court order or limited in the 3 instrument creating the fiduciary relationship, a fiduciary may 4 exercise all rights and powers granted to a fiduciary under 5 chapter 633F. 6 Sec. 2. Section 633A.4402, Code 2015, is amended by adding 7 the following new subsection: 8 NEW SUBSECTION . 33. Exercise all rights and powers granted 9 to a fiduciary under chapter 633F. 10 Sec. 3. Section 633B.201, subsection 1, Code 2015, is 11 amended by adding the following new paragraph: 12 NEW PARAGRAPH . i. Exercise all rights and powers granted to 13 a fiduciary under chapter 633F. 14 Sec. 4. NEW SECTION . 633F.1 Short title. 15 This chapter shall be known and may be cited as the “Iowa 16 Uniform Fiduciary Access to Digital Assets Act” . 17 Sec. 5. NEW SECTION . 633F.2 Definitions. 18 For purposes of this chapter unless the context requires 19 otherwise: 20 1. “Account” means a digital asset of an account holder 21 assigned a unique account identifier or tied to one or more 22 pieces of verified identifying information of an account 23 holder. 24 2. “Account holder” means a person who has entered into 25 a terms-of-service agreement with a custodian. A fiduciary 26 for that person shall also be deemed to be an account holder, 27 subject to the provisions of this chapter. 28 3. “Agent” means a person granted authority under a durable 29 or nondurable power of attorney valid under chapter 633B. 30 4. “Carries” means engages in the transmission of electronic 31 communications. 32 5. “Catalogue of electronic communications” means information 33 that identifies each person with which an account holder has 34 had an electronic communication, the time and date of the 35 -1- LSB 2368XC (9) 86 jh/rj 1/ 12
S.F. _____ communication, and the electronic address of the person. 1 6. “Conservator” means the same as defined in section 633.3, 2 and includes a limited conservator, unless otherwise provided 3 by order of the court. 4 7. “Content of an electronic communication” means information 5 concerning the substance or meaning of the communication which 6 is characterized by all of the following: 7 a. Has been sent or received by the account holder. 8 b. Is in electronic storage by a custodian providing a 9 remote-computing service to the public. 10 c. Is not readily accessible to the public. 11 8. “Court” means any district court or appellate court of 12 this state. 13 9. “Custodian” means a person that carries, maintains, 14 processes, receives, or stores a digital asset of an account 15 holder. 16 10. “Digital asset” means a record that is electronic. 17 “Digital asset” does not include an underlying asset or 18 liability unless the asset or liability is itself a record 19 that is electronic. “Digital asset” does not include health 20 information or individually identifiable health information as 21 those terms are defined in section 1171 of Part C of Subtitle F 22 of the federal Health Insurance Portability and Accountability 23 Act of 1996, Pub. L. No. 104-191, as amended. 24 11. “Electronic” means relating to technology having 25 electrical, digital, magnetic, wireless, optical, 26 electromagnetic, or similar capabilities. 27 12. “Electronic communication” means the same as defined in 28 18 U.S.C. §2510(12). 29 13. “Electronic-communication service” means a custodian 30 that provides to an account holder the ability to send or 31 receive an electronic communication. 32 14. “Fiduciary” means an agent, conservator, guardian, 33 personal representative, or trustee. 34 15. “Guardian” means the same as defined in section 633.3. 35 -2- LSB 2368XC (9) 86 jh/rj 2/ 12
S.F. _____ “Guardian” includes a limited guardian, unless otherwise 1 provided by order of the court. 2 16. “Information” means data, text, images, videos, sounds, 3 codes, computer programs, software, databases, or the like. 4 17. “Person” means an individual, estate, business 5 or nonprofit entity, public corporation, government or 6 governmental subdivision, agency, or instrumentality, or other 7 legal entity. 8 18. “Personal representative” means the same as defined in 9 section 633.3. 10 19. “Power of attorney” means a record that grants an agent 11 authority to act in the place of a principal. 12 20. “Principal” means an individual who grants authority to 13 an agent in a power of attorney valid under chapter 633B. 14 21. “Record” means information that is inscribed on a 15 tangible medium or that is stored in an electronic or other 16 medium and is retrievable in a perceivable form. 17 22. “Remote-computing service” means a custodian that 18 provides to the public computer processing services or 19 the storage of digital assets by means of an electronic 20 communications system, as defined in 18 U.S.C. §2510(14). 21 23. “Terms-of-service agreement” means an agreement that 22 controls the relationship between an account holder and a 23 custodian. 24 24. “Trustee” means the same as defined in section 633.3 or 25 633A.1102. 26 25. “Ward” means a person for whom a guardian has been 27 appointed, or a person whose property is under control of a 28 conservator appointed by a court. “Ward” includes a person 29 for whom an application for the appointment of a guardian or 30 conservator is pending and for which a court order authorizing 31 access has been granted. 32 26. “Will” includes the same as defined in section 633.3. 33 Sec. 6. NEW SECTION . 633F.3 Applicability. 34 1. This chapter applies to all of the following: 35 -3- LSB 2368XC (9) 86 jh/rj 3/ 12
S.F. _____ a. A fiduciary or agent acting under a will or power of 1 attorney executed before, on, or after the effective date of 2 this Act. 3 b. A personal representative acting for a decedent who dies 4 before, on, or after the effective date of this Act. 5 c. A conservator or guardian acting for a ward on or after 6 the effective date of this Act. 7 d. A trustee acting under a trust created before, on, or 8 after the effective date of this Act. 9 2. This Act does not apply to a digital asset of an employer 10 used by an employee in the ordinary course of the employer’s 11 business. 12 Sec. 7. NEW SECTION . 633F.4 Access by personal 13 representative to digital assets of decedent. 14 1. Subject to subsection 2 and section 633F.8, subsection 15 2, unless expressly prohibited in writing by the decedent, if 16 appointed by a court with jurisdiction over the estate of a 17 decedent or expressly permitted by the will of a decedent, a 18 personal representative of the decedent has the right to access 19 an account of a decedent to obtain any of the following: 20 a. The content of an electronic communication that the 21 custodian is permitted to disclose under the federal Electronic 22 Communications Privacy Act, 18 U.S.C. §2702(b), as amended. 23 b. Any catalogue of electronic communications sent or 24 received by the decedent. 25 c. Any other digital asset in which the decedent at death 26 had a right or interest. 27 2. If the decedent was not the sole owner or authorized 28 user of the account and the account’s contents, the personal 29 representative shall obtain written authorization from each 30 other account holder, owner, or user authorized to modify the 31 contents of the accounts as identified by the custodian, before 32 being granted access under this section. 33 3. For purposes of this section, a successor of a decedent 34 as defined in section 633.356 shall be deemed to be a duly 35 -4- LSB 2368XC (9) 86 jh/rj 4/ 12
S.F. _____ appointed personal representative. 1 Sec. 8. NEW SECTION . 633F.5 Access by conservator or 2 guardian to digital assets of ward. 3 1. Subject to subsection 2 and section 633F.8, subsection 2, 4 a court with personal jurisdiction over a ward, after providing 5 an opportunity for hearing to all interested parties, may grant 6 a duly appointed conservator or guardian the right to access an 7 account of the ward to obtain any of the following: 8 a. The content of an electronic communication that the 9 custodian is permitted to disclose under the federal Electronic 10 Communications Privacy Act, 18 U.S.C. §2702(b), as amended. 11 b. A catalogue of electronic communications sent or received 12 by the ward. 13 c. A digital asset in which the ward has a right or 14 interest. 15 2. If the ward is not the sole owner or authorized user 16 of the accounts and the account’s contents, the conservator 17 or guardian shall obtain written authorization from each 18 other account holder, owner, or user authorized to modify the 19 contents of the account, as identified by the custodian before 20 being granted access under this section. 21 Sec. 9. NEW SECTION . 633F.6 Access by agent to digital 22 assets of principal. 23 1. To the extent a power of attorney expressly grants 24 authority to an agent over the content of an account of the 25 principal and subject to section 633F.8, subsection 2, the 26 agent has the right to access the account of the principal to 27 obtain the content of an electronic communication that the 28 custodian is permitted to disclose under the federal Electronic 29 Communications Privacy Act, 18 U.S.C. §2702(b), as amended, 30 provided that the principal is the sole owner and authorized 31 users of the account. If the principal is not the sole owner or 32 authorized user of the account and the account’s contents, the 33 agent must obtain written authorization from each other account 34 holder, owner, or user authorized to modify the contents of the 35 -5- LSB 2368XC (9) 86 jh/rj 5/ 12
S.F. _____ account, as identified by the custodian before being granted 1 access under this section. 2 2. Subject to section 633F.8, subsection 2, and except as 3 provided in subsection 1, and unless otherwise provided by 4 a power of attorney or the court, an agent has the right to 5 access all of the following: 6 a. A catalogue of electronic communications sent or received 7 by the principal. 8 b. A digital asset in which the principal has a right or 9 interest. 10 Sec. 10. NEW SECTION . 633F.7 Access by trustee to digital 11 assets. 12 1. Subject to subsection 3 and section 633F.8, subsection 13 2, and unless otherwise ordered by the court or provided by 14 the settlor in the terms of a trust, a trustee or a successor 15 trustee that is an original account holder has the right to 16 access any digital asset held in trust, including the catalogue 17 of electronic communications of the trustee and the content of 18 an electronic communication. 19 2. Subject to subsection 3 and section 633F.8, subsection 2, 20 and unless otherwise ordered by the court or provided by the 21 terms of a trust, a trustee that is not an original account 22 holder has the right to access all of the following: 23 a. The content of an electronic communication that the 24 custodian is permitted to disclose under the federal Electronic 25 Communications Privacy Act, 18 U.S.C. §2702(b), as amended. 26 b. A catalogue of electronic communications sent or received 27 by the original or any successor account holder. 28 c. Any other digital asset in which the original or any 29 successor account holder has a right or interest. 30 3. If the settlor was not the sole owner or authorized 31 user of the account and the account’s contents, the trustee or 32 successor trustee shall obtain written authorization from each 33 other account holder, owner, or user authorized to modify the 34 contents of the account, as identified by the custodian before 35 -6- LSB 2368XC (9) 86 jh/rj 6/ 12
S.F. _____ being granted access under this section. 1 Sec. 11. NEW SECTION . 633F.8 Fiduciary authority. 2 1. A fiduciary that is an account holder or has the right 3 under section 633F.4, 633F.5, 633F.6, or 633F.7 to access a 4 digital asset of an account holder: 5 a. Subject to the terms-of-service agreement, copyright law, 6 and other applicable law, may take any action concerning the 7 asset to the extent of the account holder’s authority and the 8 fiduciary’s power under the laws of this state. 9 b. Has, for the purpose of applicable electronic privacy 10 laws, the lawful consent of the account holder for the 11 custodian to divulge the content of an electronic communication 12 to the fiduciary. 13 c. Is an authorized user for the purpose of applicable Iowa 14 and federal computer fraud and unauthorized computer-access 15 laws. 16 2. Unless an account holder, after the effective date of 17 this Act agrees to a provision in a terms-of-service agreement 18 that limits a fiduciary’s access to a digital asset of the 19 account holder by an affirmative act separate from the account 20 holder’s assent to other provisions of the agreement, the 21 following apply: 22 a. A provision in the general terms-of-service agreement 23 that limits the fiduciary’s access to a digital asset of the 24 account holder is void against the public policy of this state. 25 b. A fiduciary’s access under this chapter to a digital 26 asset does not violate the terms-of-service agreement even 27 if the agreement requires notice of a change in the account 28 holder’s status. 29 3. A choice-of-law provision in a terms-of-service 30 agreement is unenforceable against a fiduciary acting 31 under this chapter to the extent the provision in the 32 terms-of-service agreement provides a choice of law that 33 enforces a limitation on a fiduciary’s access to a digital 34 asset, and the limitation is void under subsection 2. 35 -7- LSB 2368XC (9) 86 jh/rj 7/ 12
S.F. _____ 4. Subject to fiduciary duties imposed by the law of 1 this state, as to tangible personal property capable of 2 receiving, storing, processing, or sending a digital asset, a 3 fiduciary with authority over the property of a decedent, ward, 4 principal, or settlor, after receiving written permission from 5 each living account holder, owner, user authorized to modify 6 the contents of the property as identified on the property, 7 ward, principal, or settlor, has the right to access the 8 property and any digital asset stored in the property. 9 Sec. 12. NEW SECTION . 633F.9 Compliance. 10 1. If a fiduciary with a right under this chapter to access 11 a digital asset of an account holder complies with subsection 12 2, the custodian shall comply with the fiduciary’s request in a 13 record for each of the following: 14 a. Access to the digital asset. 15 b. Control of the digital asset. 16 c. A copy of the digital asset to the extent permitted by 17 copyright law. 18 2. If a request under subsection 1 is made by any of the 19 following, the following requirements apply: 20 a. If made by a personal representative with a right of 21 access under section 633F.4, the request must be accompanied 22 by a certified copy of the death certificate, the letters 23 of appointment of the representative, and an affidavit for 24 distribution of property made pursuant to section 633.356, or 25 court order. 26 b. If made by a conservator or guardian with the right of 27 access under section 633F.5, the request must be accompanied by 28 a certified copy of the court order that grants the conservator 29 or guardian authority over the digital asset. 30 c. If made by an agent with the right of access under 31 section 633F.6, the request must be accompanied by an original 32 or a copy of the power of attorney that authorizes the agent to 33 exercise authority over the digital asset and a certification 34 of the agent, under penalty of perjury, that the power of 35 -8- LSB 2368XC (9) 86 jh/rj 8/ 12
S.F. _____ attorney is in effect. 1 d. If made by a trustee with the right of access under 2 section 633F.7, the request must be accompanied by a certified 3 copy of the trust instrument or a certification of trust under 4 section 633A.4604 that authorizes the trustee to exercise 5 authority over the digital asset. 6 3. A custodian shall comply with a request made under 7 subsection 1 not later than thirty days after receipt. If the 8 custodian fails to comply, the fiduciary may apply to the court 9 for an order directing compliance. If the court finds that the 10 custodian has willfully failed to comply with a valid request, 11 the court may award the fiduciary damages sustained by the 12 fiduciary as a result of the willful noncompliance, costs of 13 the action, and reasonable attorney fees as determined by the 14 court. 15 4. If a certification of trust is provided under subsection 16 2, paragraph “d” , the certification need not contain the 17 dispositive terms of the trust but must contain each of the 18 following statements or information: 19 a. That the trust exists and the date the trust instrument 20 was executed. 21 b. The identity of the settlor. 22 c. The identity and address of the trustee. 23 d. That there is nothing inconsistent in the trust with 24 respect to the trustee’s powers over digital assets. 25 e. Whether the trust is revocable and the identity of any 26 person holding a power to revoke the trust. 27 f. Whether a cotrustee has authority to sign or otherwise 28 authenticate, and whether all or fewer than all cotrustees are 29 required to exercise powers of the trustee. 30 g. That it is signed or otherwise authenticated by a 31 trustee. 32 h. That the trust has not been revoked, modified, or amended 33 in a manner that would cause the representations contained in 34 the certification of trust to be incorrect. 35 -9- LSB 2368XC (9) 86 jh/rj 9/ 12
S.F. _____ 5. A custodian that receives a certification of trust 1 under subsection 4 may require the trustee to provide copies 2 of excerpts from the original trust instrument and later 3 amendments designating the trustee and conferring on the 4 trustee the power to act in the pending transaction. 5 6. A custodian that acts in reliance on a certification 6 of trust under subsection 4 without knowledge that the 7 representations contained in the certification are incorrect 8 is not liable to any person for so acting and may assume 9 without further inquiry the existence of facts stated in the 10 certification. 11 7. A person that, in good faith, enters into a transaction 12 in reliance on a certification of trust under subsection 4 may 13 enforce the transaction against the trust property as if the 14 representations contained in the certification were correct. 15 8. A person that demands the trust instrument in addition to 16 a certification of trust under subsection 4 or excerpts under 17 subsection 5 is liable for damages and reasonable attorney fees 18 and costs incurred by the trustee or trust beneficiaries, if 19 the court determines that the person did not act reasonably in 20 requesting the trust instrument. 21 9. This section does not limited the right of a person to 22 obtain a copy of a trust instrument in a judicial proceeding 23 concerning the trust. 24 Sec. 13. NEW SECTION . 633F.10 Custodian immunity. 25 A custodian and the custodian’s officers, employees, and 26 agents are immune from liability for an act or omission done in 27 good faith in compliance with this chapter. 28 Sec. 14. NEW SECTION . 633F.11 Uniformity of application 29 and construction. 30 In applying and construing this chapter, consideration must 31 be given to the need to promote uniformity of the law with 32 respect to its subject matter among states that enact the 33 uniform fiduciary access to digital assets act. 34 Sec. 15. NEW SECTION . 633F.12 Relation to Electronic 35 -10- LSB 2368XC (9) 86 jh/rj 10/ 12
S.F. _____ Signatures in Global and National Commerce Act. 1 This chapter modifies, limits, or supersedes the federal 2 Electronic Signatures in Global and National Commerce Act, 15 3 U.S.C. §7001 et seq., but does not modify, limit, or supersede 4 section 101(c) of that Act, 15 U.S.C. §7001(c), or authorize 5 electronic delivery of any of the notices described in section 6 103(b) of that Act, 15 U.S.C. §7003(b). 7 EXPLANATION 8 The inclusion of this explanation does not constitute agreement with 9 the explanation’s substance by the members of the general assembly. 10 This bill relates to fiduciary access to digital assets and 11 includes applicability provisions. 12 The bill defines a “fiduciary” as an agent under a power 13 of attorney pursuant to Code chapter 633B, a conservator, 14 guardian, personal representative, or trustee as each is 15 defined under Code section 633.3, or a trustee as defined in 16 Code section 633A.1102. The bill defines a “digital asset” 17 as a record that is electronic, excluding an underlying 18 asset or liability unless the asset or liability is itself an 19 electronic record. “Digital asset” does not include “health 20 information” or “individually identifiable health information” 21 as those terms are defined under the federal Health Insurance 22 Portability and Accountability Act. The bill defines 23 “custodian” as a person that carries, maintains, processes, 24 receives, or stores a digital asset of an account holder. 25 The bill provides that if a fiduciary presents a custodian 26 with a valid written request, accompanied by the documentation 27 which establishes the relationship between the account holder 28 and the fiduciary, the custodian shall provide the fiduciary 29 access to or control of the digital asset. However, if the 30 account holder was not the sole owner or authorized user of 31 the account, the fiduciary shall obtain authorization from 32 the other owners or authorized users before the custodian is 33 required to provide the fiduciary access or control to the 34 digital asset. 35 -11- LSB 2368XC (9) 86 jh/rj 11/ 12
S.F. _____ The bill provides that a custodian, whom in good faith, 1 complies with a valid written request is immune from liability 2 for any action done in compliance with the bill. 3 The bill does not apply to an employer’s digital assets which 4 an employee or contractor regularly uses in the usual course 5 of business. 6 The bill provides that a terms-of-service agreement which 7 purports to limit a fiduciary’s access to a digital asset is 8 void unless the account holder agreed, after the effective date 9 of the bill, to the provision by an affirmative act separate 10 from assenting to the rest of the terms-of-service agreement. 11 A choice-of-law provision in a terms-of-service agreement which 12 designates law that would enforce a limitation on a fiduciary’s 13 access to a digital asset is unenforceable against a fiduciary. 14 The bill provides applicability provisions. The bill 15 applies to a fiduciary acting under a will or an agent acting 16 under a power of attorney executed before, on, or after the 17 effective date of the bill. The bill applies to a personal 18 representative acting for a decedent who dies before, on, or 19 after the effective date of the bill. The bill applies to 20 a conservator or guardian acting for a ward on or after the 21 effective date of the bill. The bill applies to a trustee 22 acting under a trust created before, on, or after the effective 23 date of the bill. 24 The bill makes conforming changes. 25 -12- LSB 2368XC (9) 86 jh/rj 12/ 12
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