Bill Text: NY S07604 | 2015-2016 | General Assembly | Amended
Bill Title: Provides for the administration of digital assets; defines terms; authorizes a user to use an online tool to direct the custodian to disclose or not to disclose some or all of the user's digital assets, including the content of electronic communications; provides that this article does not impair the rights of a custodian or a user under a terms-of-service agreement to access and use digital assets of the user; provides for a procedure for disclosing digital assets; makes related provisions.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2016-06-09 - SUBSTITUTED BY A9910A [S07604 Detail]
Download: New_York-2015-S07604-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 7604--A Cal. No. 1132 IN SENATE May 11, 2016 ___________ Introduced by Sen. BONACIC -- (at request of the Office of Court Admin- istration) -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary -- reported favorably from said committee, ordered to first report, amended on first report, ordered to a second report and ordered reprinted, retaining its place in the order of second report AN ACT to amend the estates, powers and trusts law, in relation to the administration of digital assets The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The estates, powers and trusts law is amended by adding a 2 new article 13-A to read as follows: 3 ARTICLE 13-A 4 ADMINISTRATION OF DIGITAL ASSETS 5 SUMMARY OF ARTICLE 6 PART 1. DEFINITIONS 7 Section 13-A-1 Definitions. 8 PART 2. APPLICABILITY, PROCEDURE FOR DISCLOSURE, USER DIRECTIONS 9 Section 13-A-2.1 Applicability. 10 13-A-2.2 User direction for disclosure of digital assets. 11 13-A-2.3 Terms-of-service agreement. 12 13-A-2.4 Procedure for disclosing digital assets. 13 PART 3. DISCLOSURE OF DIGITAL ASSETS TO FIDUCIARY 14 Section 13-A-3.1 Disclosure of content of electronic communications of 15 deceased user. 16 13-A-3.2 Disclosure of other digital assets of deceased user. 17 13-A-3.3 Disclosure of content of electronic communications of 18 principal. 19 13-A-3.4 Disclosure of other digital assets of principal. 20 13-A-3.5 Disclosure of digital assets held in trust when trustee 21 is original user. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD14544-03-6S. 7604--A 2 1 13-A-3.6 Disclosure of contents of electronic communications 2 held in trust when trustee not original user. 3 13-A-3.7 Disclosure of other digital assets held in trust when 4 trustee not original user. 5 13-A-3.8 Disclosure of digital assets to guardian of ward. 6 PART 4. FIDUCIARY DUTY AND AUTHORITY, COMPLIANCE AND IMMUNITY 7 Section 13-A-4.1 Fiduciary duty and authority. 8 13-A-4.2 Custodian compliance and immunity. 9 PART 5. MISCELLANEOUS PROVISIONS 10 Section 13-A-5.1 Relation to electronic signature in global and national 11 commerce act. 12 13-A-5.2 Severability. 13 PART 1. DEFINITIONS 14 § 13-A-1 Definitions 15 In this article the following terms shall have the following meanings: 16 (a) "Account" means an arrangement under a terms-of-service agreement 17 in which a custodian carries, maintains, processes, receives, or stores 18 a digital asset of the user or provides goods or services to the user. 19 (b) "Agent" means a person granted authority to act as attorney-in- 20 fact for the principal under a power of attorney and includes the 21 original agent or any co-agent or successor agent. 22 (c) "Carries" means engages in the transmission of an electronic 23 communication. 24 (d) "Catalogue of electronic communications" means information that 25 identifies each person with which a user has had an electronic communi- 26 cation, the time and date of the communication, and the electronic 27 address of the person. 28 (e) "Content of an electronic communication" means information 29 concerning the substance or meaning of the communication which: 30 (1) has been sent or received by a user; 31 (2) is in electronic storage by a custodian providing an electronic- 32 communication service to the public or is carried or maintained by a 33 custodian providing a remote-computing service to the public; and 34 (3) is not readily accessible to the public. 35 (f) "Court" means the court in this state having jurisdiction in 36 matters relating to the content of this article. 37 (g) "Custodian" means a person that carries, maintains, processes, 38 receives, or stores a digital asset of a user. 39 (h) "Designated recipient" means a person chosen by a user using an 40 online tool to administer digital assets of the user. 41 (i) "Digital asset" means an electronic record in which an individual 42 has a right or interest. The term does not include an underlying asset 43 or liability unless the asset or liability is itself an electronic 44 record. 45 (j) "Electronic" means relating to technology having electrical, 46 digital, magnetic, wireless, optical, electromagnetic, or similar capa- 47 bilities. 48 (k) "Electronic communication" has the meaning set forth in 18 U.S.C. 49 section 2510(12), as amended. 50 (l) "Electronic-communication service" means a custodian that provides 51 to a user the ability to send or receive an electronic communication. 52 (m) "Fiduciary" includes an executor, preliminary executor, adminis- 53 trator, temporary administrator, voluntary administrator, personalS. 7604--A 3 1 representative, guardian, agent, or trustee. This term includes the 2 successor to any fiduciary. 3 (n) "Guardian" means a person who has been appointed as a guardian by 4 a court of this state pursuant to the surrogate's court procedure act or 5 the mental hygiene law. 6 (o) "Information" means data, metadata, Internet protocol address, 7 user login information, text, images, videos, sounds, codes, computer 8 programs, software, databases, or similar intelligence of any nature. 9 (p) "Online tool" means an electronic service provided by a custodian 10 that allows the user, in an agreement distinct from the terms-of-service 11 agreement between the custodian and user, to provide directions for 12 disclosure or nondisclosure of digital assets to a third person. 13 (q) "Person" means a natural person, corporation, business trust, 14 estate, trust, partnership, limited liability company, association, 15 joint venture, business or nonprofit entity, public corporation, govern- 16 ment or governmental subdivision, agency, or instrumentality, or other 17 legal or commercial entity, board and the state. 18 (r) "Power of attorney" means a record that grants an agent authority 19 to act in the place of a principal. 20 (s) "Principal" means an individual who grants authority to an agent 21 in a power of attorney. 22 (t) "Protective order" means an order appointing a guardian or another 23 order related to management of a ward's property. 24 (u) "Record" means information that is inscribed on a tangible medium 25 or that is stored in an electronic or other medium and is retrievable in 26 perceivable form. 27 (v) "Remote-computing service" means a custodian that provides to a 28 user computer-processing services or the storage of digital assets by 29 means of an electronic communications system, as defined in 18 U.S.C. 30 section 2510(14), as amended. 31 (w) "Terms-of-service agreement" means an agreement that controls the 32 relationship between a user and a custodian. 33 (x) "Trustee" includes an original additional. and successor trustee, 34 and a co-trustee. 35 (y) "User" means a person that has an account with a custodian. 36 (z) "Ward" means an individual for whom a guardian has been appointed 37 by a court of this state pursuant to the surrogate's court procedure act 38 or the mental hygiene law. The term includes an individual for whom an 39 application of guardianship is pending. 40 PART 2. APPLICABILITY; PROCEDURE FOR DISCLOSURE; USER DIRECTIONS 41 § 13-A-2.1 Applicability 42 (a) This article applies to: 43 (1) a fiduciary acting under a will, trust or power of attorney 44 executed before, on, or after the effective date of this article; 45 (2) an executor, administrator or personal representative acting for a 46 decedent who died before, on, or after the effective date of this arti- 47 cle; 48 (3) a guardianship proceeding commenced before, on, or after the 49 effective date of this article; and 50 (4) a trustee acting under a trust created before, on, or after the 51 effective date of this article. 52 (b) This article applies to a custodian if the user resides in this 53 state or resided in this state at the time of the user's death.S. 7604--A 4 1 (c) This article does not apply to a digital asset of an employer used 2 by an employee in the ordinary course of the employer's business. 3 § 13-A-2.2 User direction for disclosure of digital assets 4 (a) A user may use an online tool to direct the custodian to disclose 5 to a designated recipient or not to disclose some or all of the user's 6 digital assets, including the content of electronic communications. If 7 the online tool allows the user to modify or delete a direction at all 8 times, a direction regarding disclosure using an online tool overrides a 9 contrary direction by the user in a will, trust, power of attorney, or 10 other record. 11 (b) If a user has not used an online tool to give direction under 12 paragraph (a) or if the custodian has not provided an online tool, the 13 user may allow or prohibit in a will, trust, power of attorney, or other 14 record, disclosure to a fiduciary of some or all of the user's digital 15 assets, including the content of electronic communications sent or 16 received by the user. 17 (c) A user's direction under paragraph (a) or (b) overrides a contrary 18 provision in a terms-of-service agreement that does not require the user 19 to act affirmatively and distinctly from the user's assent to the terms 20 of service. 21 § 13-A-2.3 Terms-of-service agreement 22 (a) This article does not change or impair a right of a custodian or a 23 user under a terms-of-service agreement to access and use digital assets 24 of the user. 25 (b) This article does not give a fiduciary or a designated recipient 26 any new or expanded rights other than those held by the user for whom, 27 or for whose estate, the fiduciary or designated recipient acts or 28 represents. 29 (c) A fiduciary's or designated recipient's access to digital assets 30 may be modified or eliminated by a user, by federal law, or by a terms- 31 of-service agreement if the user has not provided direction under 32 section 13-A-2.2. 33 § 13-A-2.4 Procedure for disclosing digital assets 34 (a) When disclosing digital assets of a user under this article, the 35 custodian may at its sole discretion: 36 (1) grant a fiduciary or designated recipient full access to the 37 user's account; 38 (2) grant a fiduciary or designated recipient partial access to the 39 user's account sufficient to perform the tasks with which the fiduciary 40 or designated recipient is charged; or 41 (3) provide a fiduciary or designated recipient a copy in a record of 42 any digital asset that, on the date the custodian received the request 43 for disclosure, the user could have accessed if the user were alive and 44 had full capacity and access to the account. 45 (b) A custodian may assess a reasonable administrative charge for the 46 cost of disclosing digital assets under this article. 47 (c) A custodian need not disclose under this article a digital asset 48 deleted by a user. 49 (d) If a user directs or a fiduciary requests a custodian to disclose 50 under this article some, but not all, of the user's digital assets, the 51 custodian need not disclose the assets if segregation of the assets 52 would impose an undue burden on the custodian. If the custodian believes 53 the direction or request imposes an undue burden, the custodian or fidu- 54 ciary may seek an order from the court to disclose: 55 (1) a subset limited by date of the user's digital assets;S. 7604--A 5 1 (2) all of the user's digital assets to the fiduciary or designated 2 recipient; 3 (3) none of the user's digital assets; or 4 (4) all of the user's digital assets to the court for review in 5 camera. 6 PART 3. DISCLOSURE OF DIGITAL ASSETS TO FIDUCIARY 7 § 13-A-3.1 Disclosure of content of electronic communications of 8 deceased user 9 If a deceased user consented or a court directs disclosure of the 10 contents of electronic communications of the user, the custodian shall 11 disclose to the executor, administrator or personal representative of 12 the estate of the user the content of an electronic communication sent 13 or received by the user if the executor, administrator or representative 14 gives the custodian: 15 (a) a written request for disclosure in physical or electronic form; 16 (b) a copy of the death certificate of the user; 17 (c) a certified copy of the letter of appointment of the executor, 18 administrator, or personal representative or a small-estate affidavit or 19 court order; 20 (d) unless the user provided direction using an online tool, a copy of 21 the user's will, trust, or other record evidencing the user's consent to 22 disclosure of the content of electronic communications; and 23 (e) if requested by the custodian: 24 (1) a number, username, address, or other unique subscriber or account 25 identifier assigned by the custodian to identify the user's account; 26 (2) evidence linking the account to the user; or 27 (3) a finding by the court that: 28 (A) the user had a specific account with the custodian, identifiable 29 by the information specified in subparagraph (1); 30 (B) disclosure of the content of electronic communications of the user 31 would not violate 18 U.S.C. section 2701 et seq., as amended, 47 U.S.C. 32 section 222, as amended, or other applicable law; 33 (C) unless the user provided direction using an online tool, the user 34 consented to disclosure of the content of electronic communications; or 35 (D) disclosure of the content of electronic communications of the user 36 is reasonably necessary for administration of the estate. 37 § 13-A-3.2 Disclosure of other digital assets of deceased user 38 Unless the user prohibited disclosure of digital assets or the court 39 directs otherwise, a custodian shall disclose to the executor, adminis- 40 trator or personal representative of the estate of a deceased user a 41 catalogue of electronic communications sent or received by the user and 42 digital assets, other than the content of electronic communications, of 43 the user, if the executor, administrator or personal representative 44 gives the custodian: 45 (a) a written request for disclosure in physical or electronic form; 46 (b) a copy of the death certificate of the user; 47 (c) a certified copy of the letter of appointment of the executor, 48 administrator, or personal representative or a small-estate affidavit or 49 court order; and 50 (d) if requested by the custodian: 51 (1) a number, username, address, or other unique subscriber or account 52 identifier assigned by the custodian to identify the user's account; 53 (2) evidence linking the account to the user;S. 7604--A 6 1 (3) an affidavit stating that disclosure of the user's digital assets 2 is reasonably necessary for administration of the estate; or 3 (4) a finding by the court that: 4 (A) the user had a specific account with the custodian, identifiable 5 by the information specified in subparagraph (1); or 6 (B) disclosure of the user's digital assets is reasonably necessary 7 for administration of the estate. 8 § 13-A-3.3 Disclosure of content of electronic communications of princi- 9 pal 10 To the extent a power of attorney expressly grants an agent authority 11 over the content of electronic communications sent or received by the 12 principal and unless directed otherwise by the principal or the court, a 13 custodian shall disclose to the agent the content if the agent gives the 14 custodian: 15 (a) a written request for disclosure in physical or electronic form; 16 (b) a copy of the power of attorney expressly granting the agent 17 authority over the content of electronic communications of the princi- 18 pal; 19 (c) an affidavit in which the affiant attests that the copy is an 20 accurate copy of the original power of attorney and that, to the best of 21 the affiant's knowledge, the power remains in effect; and 22 (d) if requested by the custodian: 23 (1) a number, username, address, or other unique subscriber or account 24 identifier assigned by the custodian to identify the principal's 25 account; or 26 (2) evidence linking the account to the principal. 27 § 13-A-3.4 Disclosure of other digital assets of principal 28 Unless otherwise ordered by the court, directed by the principal, or 29 provided by a power of attorney, a custodian shall disclose to an agent 30 with specific authority over digital assets or general authority to act 31 on behalf of a principal a catalogue of electronic communications sent 32 or received by the principal and digital assets, other than the content 33 of electronic communications, of the principal if the agent gives the 34 custodian: 35 (a) a written request for disclosure in physical or electronic form; 36 (b) a copy of the power of attorney that gives the agent specific 37 authority over digital assets or general authority to act on behalf of 38 the principal; 39 (c) an affidavit in which the affiant attests that the copy is an 40 accurate copy of the original power of attorney and that, to the best of 41 the affiant's knowledge, the power remains in effect; and 42 (d) if requested by the custodian: 43 (1) a number, username, address, or other unique subscriber or account 44 identifier assigned by the custodian to identify the principal's 45 account; or 46 (2) evidence linking the account to the principal. 47 § 13-A-3.5 Disclosure of digital assets held in trust when trustee is 48 original user 49 Unless otherwise ordered by the court or provided in a trust, a custo- 50 dian shall disclose to a trustee that is an original user of an account 51 any digital asset of the account held in trust, including a catalogue of 52 electronic communications of the trustee and the content of electronic 53 communications. 54 § 13-A-3.6 Disclosure of contents of electronic communications held in 55 trust when trustee not original userS. 7604--A 7 1 Unless otherwise ordered by the court, directed by the user, or 2 provided in a trust, a custodian shall disclose to a trustee that is not 3 an original user of an account the content of an electronic communi- 4 cation sent or received by an original or successor user and carried, 5 maintained, processed, received, or stored by the custodian in the 6 account of the trust if the trustee gives the custodian: 7 (a) a written request for disclosure in physical or electronic form; 8 (b) a copy of the trust instrument that includes consent to disclosure 9 of the content of electronic communications to the trustee; 10 (c) a certification by the trustee, under penalty of perjury, that the 11 trust exists and the trustee is a currently acting trustee of the trust; 12 and 13 (d) if requested by the custodian: 14 (1) a number, username, address, or other unique subscriber or account 15 identifier assigned by the custodian to identify the trust's account; or 16 (2) evidence linking the account to the trust. 17 § 13-A-3.7 Disclosure of other digital assets held in trust when trustee 18 not original user 19 Unless otherwise ordered by the court, directed by the user, or 20 provided in a trust, a custodian shall disclose, to a trustee that is 21 not an original user of an account, a catalogue of electronic communi- 22 cations sent or received by an original or successor user and stored, 23 carried, or maintained by the custodian in an account of the trust and 24 any digital assets, other than the content of electronic communications, 25 in which the trust has a right or interest if the trustee gives the 26 custodian: 27 (a) a written request for disclosure in physical or electronic form; 28 (b) a copy of the trust instrument; 29 (c) a certification by the trustee, under penalty of perjury, that the 30 trust exists and the trustee is a currently acting trustee of the trust; 31 and 32 (d) if requested by the custodian: 33 (1) a number, username, address, or other unique subscriber or account 34 identifier assigned by the custodian to identify the trust's account; or 35 (2) evidence linking the account to the trust. 36 § 13-A-3.8 Disclosure of digital assets to guardian of ward 37 (a) After an opportunity for a hearing concerning the appointment or 38 authority of a guardian, the court may grant a guardian access to the 39 digital assets of a ward. 40 (b) Unless otherwise ordered by the court or directed by the user, a 41 custodian shall disclose to a guardian the catalogue of electronic 42 communications sent or received by a ward and any digital assets, other 43 than the content of electronic communications, in which the ward has a 44 right or interest if the ward gives the custodian: 45 (1) a written request for disclosure in physical or electronic form; 46 (2) a certified copy of the court order that gives the guardian 47 authority over the digital assets of the ward; and 48 (3) if requested by the custodian: 49 (A) a number, username, address, or other unique subscriber or account 50 identifier assigned by the custodian to identify the account of the 51 ward; or 52 (B) evidence linking the account to the ward. 53 (c) A guardian with general authority to manage the assets of a ward 54 may request a custodian of the digital assets of the ward to suspend or 55 terminate an account of the ward for good cause. A request made underS. 7604--A 8 1 this section must be accompanied by a certified copy of the court order 2 giving the guardian authority over the ward's property. 3 PART 4. FIDUCIARY DUTY AND AUTHORITY, COMPLIANCE AND IMMUNITY 4 § 13-A-4.1 Fiduciary duty and authority 5 (a) The legal duties imposed on a fiduciary charged with managing 6 tangible property apply to the management of digital assets, including: 7 (1) the duty of care; 8 (2) the duty of loyalty; and 9 (3) the duty of confidentiality. 10 (b) A fiduciary's or designated recipient's authority with respect to 11 a digital asset of a user: 12 (1) except as otherwise provided in section 13-A-2.2, is subject to 13 the applicable terms of service; 14 (2) is subject to other applicable law, including copyright law; 15 (3) in the case of a fiduciary, is limited by the scope of the 16 fiduciary's duties; and 17 (4) may not be used to impersonate the user. 18 (c) A fiduciary with authority over the property of a decedent, ward, 19 principal, or settlor has the right to access any digital asset in which 20 the decedent, ward, principal, or settlor had a right or interest and 21 that is not held by a custodian or subject to a terms-of-service agree- 22 ment. 23 (d) A fiduciary acting within the scope of the fiduciary's duties is 24 an authorized user of the property of the decedent, ward, principal, or 25 settlor for the purpose of applicable computer-fraud and unauthorized- 26 computer-access laws, including this state's law on unauthorized comput- 27 er access. 28 (e) A fiduciary with authority over the tangible, personal property of 29 a decedent, ward, principal, or settlor; 30 (1) has the right to access the property and any digital asset stored 31 in it; and 32 (2) is an authorized user for the purpose of computer-fraud and unau- 33 thorized-computer-access laws, including this state's law on unauthor- 34 ized computer access. 35 (f) A custodian may disclose information in an account to a fiduciary 36 of the user when the information is required to terminate an account 37 used to access digital assets licensed to the user. 38 (g) A fiduciary of a user may request a custodian to terminate the 39 user's account. A request for termination must be in writing, in either 40 physical or electronic form, and accompanied by: 41 (1) if the user is deceased, a copy of the death certificate of the 42 user; 43 (2) a certified copy of the letter of appointment of the executor, 44 administrator, or personal representative or a small-estate affidavit or 45 court order, power of attorney, or trust giving the fiduciary authority 46 over the account; and 47 (3) if requested by the custodian: 48 (A) a number, username, address, or other unique subscriber or account 49 identifier assigned by the custodian to identify the user's account; 50 (B) evidence linking the account to the user; or 51 (C) a finding by the court that the user had a specific account with 52 the custodian, identifiable by the information specified in item (A). 53 § 13-A-4.2 Custodian compliance and immunity 54 (a) Not later than sixty days after receipt of the information 55 required under sections 13-A-3.1 through 13-A-4.1, a custodian shallS. 7604--A 9 1 comply with a request under this article from a fiduciary or designated 2 recipient to disclose digital assets or terminate an account. If the 3 custodian fails to comply, the fiduciary or designated recipient may 4 apply to the court for an order directing compliance. 5 (b) An order under paragraph (a) directing compliance must contain a 6 finding that compliance is not in violation of 18 U.S.C. section 2702, 7 as amended. 8 (c) A custodian may notify the user that a request for disclosure or 9 to terminate an account was made under this article. 10 (d) A custodian may deny a request under this article from a fiduciary 11 or designated recipient for disclosure of digital assets or to terminate 12 an account if the custodian is aware of any lawful access to the account 13 following the receipt of the fiduciary's request. 14 (e) This article does not limit a custodian's ability to obtain or 15 require a fiduciary or designated recipient requesting disclosure or 16 termination under this article to obtain a court order which: 17 (1) specifies that an account belongs to the ward or principal; 18 (2) specifies that there is sufficient consent from the ward or prin- 19 cipal to support the requested disclosure; and 20 (3) contains a finding required by law other than this article. 21 (f) A custodian and its officers, employees, and agents are immune 22 from liability for an act or omission done in good faith in compliance 23 with this article. 24 PART 5. MISCELLANEOUS PROVISIONS 25 § 13-A-5.1 Relation to electronic signature in global and national 26 commerce act 27 This article modifies, limits, or supersedes the Electronic Signatures 28 in Global and National Commerce Act, 15 U.S.C. section 7001 et seq., but 29 does not modify, limit, or supersede section 101(c) of such act, 15 30 U.S.C. section 7001(c), or authorize electronic delivery of any of the 31 notices described in section 103(b) of such act, 15 U.S.C. section 32 7003(b). 33 § 13-A-5.2 Severability 34 If any provision of this article or its application to any person or 35 circumstance is held invalid, the invalidity does not affect other 36 provisions or applications of this article which can be given effect 37 without the invalid provision or application, and to this end the 38 provisions of this article are severable. 39 § 2. This act shall take effect immediately.