SB 16: "An Act adopting and relating to the Revised Uniform Fiduciary Access to Digital Assets Act."
00 SENATE BILL NO. 16 01 "An Act adopting and relating to the Revised Uniform Fiduciary Access to Digital 02 Assets Act." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 13 is amended by adding a new chapter to read: 05 Chapter 63. Revised Uniform Fiduciary Access to Digital Assets Act. 06 Sec. 13.63.010. User direction for disclosure of digital assets. (a) A user may 07 use an online tool to direct the custodian to disclose to a designated recipient, or not to 08 disclose, some or all of the user's digital assets, including the content of electronic 09 communications. If the online tool allows the user to modify or delete a direction at all 10 times, a direction regarding disclosure using an online tool overrides a contrary 11 direction by the user in a will, trust, power of attorney, or other record. 12 (b) If a user has not used an online tool to give direction under (a) of this 13 section or if the custodian has not provided an online tool, the user may allow or 14 prohibit in a will, trust, power of attorney, or other record, disclosure to a fiduciary of
01 some or all of the user's digital assets, including the content of electronic 02 communications sent or received by the user. 03 (c) A user's direction under (a) or (b) of this section overrides a contrary 04 provision in a terms-of-service agreement that does not require the user to act 05 affirmatively and distinctly from the user's assent to the terms of service. 06 Sec. 13.63.020. Terms-of-service agreement. (a) This chapter does not 07 change or impair a right of a custodian or a user under a terms-of-service agreement to 08 access and use digital assets of the user. 09 (b) This chapter does not give a fiduciary or designated recipient any new or 10 expanded rights other than those held by the user for whom, or for whose estate, the 11 fiduciary or designated recipient acts or represents. 12 (c) A fiduciary's or designated recipient's access to digital assets may be 13 modified or eliminated by a user, by federal law, or by a terms-of-service agreement if 14 the user has not provided direction under AS 13.63.010. 15 Sec. 13.63.030. Procedures for disclosing digital assets. (a) When disclosing 16 digital assets of a user under this chapter, the custodian may, in its sole discretion, 17 (1) grant a fiduciary or designated recipient full access to the user's 18 account; 19 (2) grant a fiduciary or designated recipient partial access to the user's 20 account sufficient to perform the tasks with which the fiduciary or designated recipient 21 is charged; or 22 (3) provide a fiduciary or designated recipient a copy in a record of 23 any digital asset that, on the date the custodian received the request for disclosure, the 24 user could have accessed if the user were alive and had full capacity and access to the 25 account. 26 (b) A custodian may assess a reasonable administrative charge for the cost of 27 disclosing digital assets under this chapter. 28 (c) A custodian is not required to disclose under this chapter a digital asset 29 deleted by a user. 30 (d) If a user directs or a fiduciary requests a custodian to disclose under this 31 chapter some, but not all, of the user's digital assets, the custodian is not required to
01 disclose the assets if segregation of the assets would impose an undue burden on the 02 custodian. If the custodian believes the direction or request imposes an undue burden, 03 the custodian or fiduciary may seek an order from the superior court to disclose 04 (1) a subset limited by date of the user's digital assets; 05 (2) all of the user's digital assets to the fiduciary or designated 06 recipient; 07 (3) none of the user's digital assets; or 08 (4) all of the user's digital assets to the superior court for review in 09 camera. 10 Sec. 13.63.040. Disclosure of content of electronic communications of 11 deceased user. If a deceased user consented or a superior court directs disclosure of 12 the contents of electronic communications of the user, the custodian shall disclose to 13 the personal representative of the estate of the user the content of an electronic 14 communication sent or received by the user if the personal representative gives the 15 custodian 16 (1) a written request for disclosure in physical or electronic form; 17 (2) a certified copy of the death certificate of the user; 18 (3) a certified copy of the letters testamentary of the personal 19 representative; 20 (4) unless the user provided direction using an online tool, a copy of 21 the user's will, trust, power of attorney, or other record evidencing the user's consent to 22 disclosure of the content of electronic communications; and 23 (5) if requested by the custodian, 24 (A) a number, username, address, or other unique subscriber or 25 account identifier assigned by the custodian to identify the user's account; 26 (B) evidence linking the account to the user; or 27 (C) a finding by the superior court that 28 (i) the user had a specific account with the custodian, 29 identifiable by the information specified in (A) of this paragraph; 30 (ii) disclosure of the content of electronic 31 communications of the user would not violate 18 U.S.C. 2701 - 2712,
01 47 U.S.C. 222, or other applicable law; 02 (iii) unless the user provided direction using an online 03 tool, the user consented to disclosure of the content of electronic 04 communications; or 05 (iv) disclosure of the content of electronic 06 communications of the user is reasonably necessary for administration 07 of the estate. 08 Sec. 13.63.050. Disclosure of other digital assets of deceased user. Unless 09 the user prohibited disclosure of digital assets or the superior court directs otherwise, a 10 custodian shall disclose to the personal representative of the estate of a deceased user a 11 catalog of electronic communications sent or received by the user and digital assets, 12 other than the content of electronic communications, of the user if the representative 13 gives the custodian 14 (1) a written request for disclosure in physical or electronic form; 15 (2) a certified copy of the death certificate of the user; 16 (3) a certified copy of the letters testamentary of the personal 17 representative; and 18 (4) if requested by the custodian, 19 (A) a number, username, address, or other unique subscriber or 20 account identifier assigned by the custodian to identify the user's account; 21 (B) evidence linking the account to the user; 22 (C) an affidavit stating that disclosure of the user's digital 23 assets is reasonably necessary for administration of the estate; or 24 (D) a finding by the superior court that 25 (i) the user had a specific account with the custodian, 26 identifiable by the information specified in (A) of this paragraph; or 27 (ii) disclosure of the user's digital assets is reasonably 28 necessary for administration of the estate. 29 Sec. 13.63.060. Disclosure of content of electronic communications of 30 principal. To the extent a power of attorney expressly grants an agent authority over 31 the content of electronic communications sent or received by the principal and unless
01 directed otherwise by the principal or the superior court, a custodian shall disclose to 02 the agent the content if the agent gives the custodian 03 (1) a written request for disclosure in physical or electronic form; 04 (2) an original or copy of the power of attorney expressly granting the 05 agent authority over the content of electronic communications of the principal; 06 (3) a certification by the agent, under penalty of perjury, that the power 07 of attorney is in effect; and 08 (4) if requested by the custodian, 09 (A) a number, username, address, or other unique subscriber or 10 account identifier assigned by the custodian to identify the principal's account; 11 or 12 (B) evidence linking the account to the principal. 13 Sec. 13.63.070. Disclosure of other digital assets of principal. Unless 14 otherwise ordered by the superior court, directed by the principal, or provided by a 15 power of attorney, a custodian shall disclose to an agent with specific authority over 16 digital assets or general authority to act on behalf of a principal a catalog of electronic 17 communications sent or received by the principal and digital assets, other than the 18 content of electronic communications, of the principal if the agent gives the custodian 19 (1) a written request for disclosure in physical or electronic form; 20 (2) an original or a copy of the power of attorney that gives the agent 21 specific authority over digital assets or general authority to act on behalf of the 22 principal; 23 (3) a certification by the agent, under penalty of perjury, that the power 24 of attorney is in effect; and 25 (4) if requested by the custodian, 26 (A) a number, username, address, or other unique subscriber or 27 account identifier assigned by the custodian to identify the principal's account; 28 or 29 (B) evidence linking the account to the principal. 30 Sec. 13.63.080. Disclosure of digital assets held in trust when trustee is 31 original user. Unless otherwise ordered by the superior court or provided in a trust, a
01 custodian shall disclose to a trustee that is an original user of an account any digital 02 asset of the account held in trust, including a catalog of electronic communications of 03 the trustee and the content of electronic communications. 04 Sec. 13.63.090. Disclosure of contents of electronic communications held in 05 trust when trustee not original user. Unless otherwise ordered by the superior court, 06 directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is 07 not an original user of an account the content of an electronic communication sent or 08 received by an original or successor user and carried, maintained, processed, received, 09 or stored by the custodian in the account of the trust if the trustee gives the custodian 10 (1) a written request for disclosure in physical or electronic form; 11 (2) a certified copy of the trust instrument or a certification of the trust 12 under AS 13.36.079 that includes consent to disclosure of the content of electronic 13 communications to the trustee; 14 (3) a certification by the trustee, under penalty of perjury, that the trust 15 exists and the trustee is a currently acting trustee of the trust; and 16 (4) if requested by the custodian, 17 (A) a number, username, address, or other unique subscriber or 18 account identifier assigned by the custodian to identify the trust's account; or 19 (B) evidence linking the account to the trust. 20 Sec. 13.63.100. Disclosure of other digital assets held in trust when trustee 21 not original user. Unless otherwise ordered by the superior court, directed by the 22 user, or provided in a trust, a custodian shall disclose to a trustee that is not an original 23 user of an account a catalog of electronic communications sent or received by an 24 original or successor user and stored, carried, or maintained by the custodian in an 25 account of the trust and any digital assets, other than the content of electronic 26 communications, in which the trust has a right or interest if the trustee gives the 27 custodian 28 (1) a written request for disclosure in physical or electronic form; 29 (2) a certified copy of the trust instrument or a certification of the trust 30 under AS 13.36.079; 31 (3) a certification by the trustee, under penalty of perjury, that the trust
01 exists and the trustee is a currently acting trustee of the trust; and 02 (4) if requested by the custodian, 03 (A) a number, username, address, or other unique subscriber or 04 account identifier assigned by the custodian to identify the trust's account; or 05 (B) evidence linking the account to the trust. 06 Sec. 13.63.110. Disclosure of digital assets to conservator of protected 07 person. (a) After an opportunity for a hearing under AS 13.26.401 - 13.26.595, the 08 superior court may grant a conservator access to the digital assets of a protected 09 person except that, if the conservator is a guardian with the powers and duties of a 10 conservator under AS 13.26.316(c), the superior court may grant the conservator 11 access to the digital assets of a protected person after an opportunity for a hearing 12 under AS 13.26.201 - 13.26.316. 13 (b) Unless otherwise ordered by the superior court or directed by the user, a 14 custodian shall disclose to a conservator the catalog of electronic communications sent 15 or received by a protected person and any digital assets, other than the content of 16 electronic communications, in which the protected person has a right or interest if the 17 conservator gives the custodian 18 (1) a written request for disclosure in physical or electronic form; 19 (2) a certified copy of the superior court order that gives the 20 conservator authority over the digital assets of the protected person; and 21 (3) if requested by the custodian, 22 (A) a number, username, address, or other unique subscriber or 23 account identifier assigned by the custodian to identify the account of the 24 protected person; or 25 (B) evidence linking the account to the protected person. 26 (c) A conservator with general authority to manage the assets of a protected 27 person may request a custodian of the digital assets of the protected person to suspend 28 or terminate an account of the protected person for good cause. A request made under 29 this subsection must be accompanied by a certified copy of the superior court order 30 giving the conservator authority over the protected person's property. 31 Sec. 13.63.120. Fiduciary duty and authority. (a) The legal duties imposed
01 on a fiduciary charged with managing tangible property apply to the management of 02 digital assets, including 03 (1) the duty of care; 04 (2) the duty of loyalty; and 05 (3) the duty of confidentiality. 06 (b) A fiduciary's or designated recipient's authority with respect to a digital 07 asset of a user 08 (1) except as otherwise provided in AS 13.63.010, is subject to the 09 applicable terms of service; 10 (2) is subject to other applicable law, including copyright law; 11 (3) in the case of a fiduciary, is limited by the scope of the fiduciary's 12 duties; and 13 (4) may not be used to impersonate the user. 14 (c) A fiduciary with authority over the property of a decedent, protected 15 person, principal, or settlor has the right to access any digital asset in which the 16 decedent, protected person, principal, or settlor had a right or interest and that is not 17 held by a custodian or subject to a terms-of-service agreement. 18 (d) A fiduciary acting within the scope of the fiduciary's duties is an 19 authorized user of the property of the decedent, protected person, principal, or settlor 20 for the purpose of applicable computer-fraud and unauthorized-computer-access laws, 21 including AS 11.46.200, 11.46.484(a)(3), and 11.46.740. 22 (e) A fiduciary with authority over the tangible personal property of a 23 decedent, protected person, principal, or settlor 24 (1) has the right to access the property and any digital asset stored in it; 25 and 26 (2) is an authorized user for the purpose of computer-fraud and 27 unauthorized-computer-access laws, including AS 11.46.200, 11.46.484(a)(3), and 28 11.46.740. 29 (f) A custodian may disclose information in an account to a fiduciary of the 30 user when the information is required to terminate an account used to access digital 31 assets licensed to the user.
01 (g) A fiduciary of a user may request a custodian to terminate the user's 02 account. A request for termination must be in writing, in either physical or electronic 03 form, and accompanied by 04 (1) if the user is deceased, a certified copy of the death certificate of 05 the user; 06 (2) a certified copy of the letters testamentary of the personal 07 representative, the superior court order, the power of attorney, or the trust instrument 08 giving the fiduciary authority over the account; and 09 (3) if requested by the custodian, 10 (A) a number, username, address, or other unique subscriber or 11 account identifier assigned by the custodian to identify the user's account; 12 (B) evidence linking the account to the user; or 13 (C) a finding by the superior court that the user had a specific 14 account with the custodian, identifiable by the information specified in (A) of 15 this paragraph. 16 Sec. 13.63.130. Custodian compliance and immunity. (a) Not later than 60 17 days after receipt of the information required under AS 13.63.040 - 13.63.120, a 18 custodian shall comply with a request under this chapter from a fiduciary or 19 designated recipient to disclose digital assets or terminate an account. If the custodian 20 fails to comply, the fiduciary or designated recipient may apply to the superior court 21 for an order directing compliance. 22 (b) An order under (a) of this section directing compliance must contain a 23 finding that compliance is not in violation of 18 U.S.C. 2702. 24 (c) A custodian may notify the user that a request for disclosure or to 25 terminate an account was made under this chapter. 26 (d) A custodian may deny a request under this chapter from a fiduciary or 27 designated recipient for disclosure of digital assets or to terminate an account if the 28 custodian is aware of any lawful access to the account following the receipt of the 29 fiduciary's request. 30 (e) This chapter does not limit a custodian's ability to obtain or to require a 31 fiduciary or designated recipient requesting disclosure or termination under this
01 chapter to obtain a superior court order that 02 (1) specifies that an account belongs to the protected person or 03 principal; 04 (2) specifies that there is sufficient consent from the protected person 05 or principal to support the requested disclosure; and 06 (3) contains a finding required by law other than this chapter. 07 (f) A custodian and its officers, employees, and agents are immune from 08 liability for an act or omission done in good faith in compliance with this chapter. 09 Sec. 13.63.140. Uniformity of application and construction. In applying and 10 construing this chapter, consideration shall be given to the need to promote uniformity 11 of the law with respect to its subject matter among states that enact it. 12 Sec. 13.63.150. Relation to Electronic Signatures in Global and National 13 Commerce Act. This chapter modifies, limits, or supersedes 15 U.S.C. 7001 - 7031 14 (Electronic Signatures in Global and National Commerce Act), but does not modify, 15 limit, or supersede 15 U.S.C. 7001(c), or authorize electronic delivery of any of the 16 notices described in 15 U.S.C. 7003(b). 17 Sec. 13.63.160. Digital assets coverage. In this chapter, a digital asset does 18 not apply to an underlying asset or liability unless the asset or liability is itself an 19 electronic record. This chapter does not apply to a digital asset of an employer used by 20 an employee in the ordinary course of the employer's business. 21 Sec. 13.63.170. Application to custodians. This chapter applies to a custodian 22 if the user resides in this state or resided in this state at the time of the user's death. 23 Sec. 13.63.190. Definitions. In this chapter, 24 (1) "account" means an arrangement under a terms-of-service 25 agreement in which a custodian carries, maintains, processes, receives, or stores a 26 digital asset of the user or provides goods or services to the user; 27 (2) "agent" means an attorney-in-fact granted authority under a durable 28 or nondurable power of attorney; 29 (3) "carries" means engages in the transmission of an electronic 30 communication; 31 (4) "catalog of electronic communications" means information that
01 identifies each person with which a user has had an electronic communication, the 02 time and date of the communication, and the electronic address of the person; 03 (5) "conservator" means a person appointed by a superior court to 04 manage all or part of the estate of a living individual; 05 (6) "content of an electronic communication" means information 06 concerning the substance or meaning of the communication that 07 (A) has been sent or received by a user; 08 (B) is in electronic storage by a custodian providing an 09 electronic-communication service to the public or is carried or maintained by a 10 custodian providing a remote-computing service to the public; in this 11 subparagraph, 12 (i) "electronic-communication service" means the 13 ability to send or receive an electronic communication; 14 (ii) "remote-computing service" means computer- 15 processing services or the storage of digital assets by means of an 16 electronic communications system; in this subparagraph, "electronic 17 communications system" has the meaning given in 18 U.S.C. 2510; and 18 (C) is not readily accessible to the public; 19 (7) "custodian" means a person that carries, maintains, processes, 20 receives, or stores a digital asset of a user; 21 (8) "designated recipient" means a person chosen by a user using an 22 online tool to administer digital assets of the user; 23 (9) "digital asset" means an electronic record in which an individual 24 has a right or interest, but does not include an underlying asset or liability unless the 25 asset or liability is itself an electronic record; 26 (10) "electronic" means relating to technology having electrical, 27 digital, magnetic, wireless, optical, electromagnetic, or similar capabilities; 28 (11) "electronic communication" has the meaning given in 18 U.S.C. 29 2510; 30 (12) "fiduciary" means an original, additional, or successor personal 31 representative, conservator, agent, or trustee;
01 (13) "information" means data, text, images, videos, sounds, codes, 02 computer programs, software, databases, or similar items; 03 (14) "online tool" means an electronic service provided by a custodian 04 that allows the user, in an agreement distinct from the terms-of-service agreement 05 between the custodian and user, to provide directions for disclosure or nondisclosure 06 of digital assets to a third person; 07 (15) "person" means an individual, estate, business or nonprofit entity, 08 public corporation, government or governmental subdivision, agency, or 09 instrumentality, or another legal entity; 10 (16) "personal representative" means an executor, administrator, 11 special administrator, or person that performs substantially the same function under 12 law of this state other than this chapter; 13 (17) "power of attorney" means a record that grants an agent authority 14 to act in the place of a principal; 15 (18) "principal" means an individual who grants authority to an agent 16 in a power of attorney; 17 (19) "protected person" means an individual for whom a conservator 18 has been appointed or an individual for whom an application for the appointment of a 19 conservator is pending; 20 (20) "record" means information that is inscribed on a tangible 21 medium or that is stored in an electronic or other medium and is retrievable in 22 perceivable form; 23 (21) "terms of service agreement" means an agreement that controls 24 the relationship between a user and a custodian; 25 (22) "trustee" means a fiduciary, whether the original fiduciary or a 26 successor fiduciary, with legal title to property under an agreement or declaration that 27 creates a beneficial interest in another person; 28 (23) "user" means a person that has an account with a custodian; 29 (24) "will" includes a codicil, a testamentary instrument that only 30 appoints an executor, and an instrument that revokes or revises a testamentary 31 instrument.
01 Sec. 13.63.195. Short title. This chapter may be cited as the Revised Uniform 02 Fiduciary Access to Digital Assets Act. 03 * Sec. 2. The uncodified law of the State of Alaska is amended by adding a new section to 04 read: 05 APPLICABILITY. (a) This Act applies to a 06 (1) fiduciary acting under a will or power of attorney executed before, on, or 07 after the effective date of this Act; 08 (2) personal representative acting for a decedent who died before, on, or after 09 the effective date of this Act; 10 (3) proceeding to appoint a conservator that is commenced before, on, or after 11 the effective date of this Act; and 12 (4) trustee acting under a trust created before, on, or after the effective date of 13 this Act. 14 (b) In this section, "conservator," "fiduciary," "personal representative," "power of 15 attorney," "trustee," and "will" have the meanings given in AS 13.63.190, enacted by sec. 1 of 16 this Act.