Legislature(2017 - 2018)BELTZ 105 (TSBldg)
04/03/2017 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearings | |
| SB16 | |
| SB15 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | SB 16 | TELECONFERENCED | |
| += | SB 15 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 16-FIDUCIARY ACCESS TO DIGITAL ASSETS
2:18:59 PM
CHAIR COGHILL announced the consideration of SB 16.
2:19:08 PM
SENATOR SHELLY HUGHES, Alaska State Legislature, sponsor of SB
16, stated that this legislation provides guidance for the
disposition of an individual's personal digital assets when they
pass away. This is missing from current law. SB 16 offers
digital users the opportunity to specify whether their digital
assets should be preserved, distributed to heirs, or destroyed.
She explained the need for an overarching law to provide access
to digital assets to loved ones in other states. She provided an
example of Yahoo denying a father access to his deceased son's
account. It took a lawsuit for the father to gain access to the
account to see if there were outstanding financial matters to
settle. If SB 16 were to pass, fiduciaries would have easier
access to digital assets of the deceased. The bill models the
Uniform Law Commission recommendations, so it would apply across
state lines.
She listed the entities that support the bill including:
National Academy of Elder Law Attorneys, Facebook, Google,
Center for Democracy and Technology, and AARP.
2:22:30 PM
CHAIR COGHILL asked for a review of the uniform code and a high
level overview of the sections.
2:23:15 PM
BUDDY WHIIT, Staff, Senator Shelly Hughes, Alaska State
Legislature, provided a high level overview of SB 16. He
described Sec. 13.63.010 as the most important section. It sets
out user direction for disclosure of digital assets. He read the
following:
Sec. 13.63.010 sets out user direction for disclosure
of digital assets. This proposed section addresses the
relationship of online tools, other records
documenting the user's intent, and terms of service
agreements. The section establishes a three-tier
priority system for determining the user's intent with
respect to a digital assets. Subsection (a) gives top
priority to the user's wishes as expressed using an
online tool. Subsection (b) gives next tier priority
to user's direction in will, trust, power of attorney,
or other record. Subsection (c) recognizes the terms-
of-service agreement if the user left no other
direction.
MR. WHITT explained that Google provides an example of an online
tool. An individual who has a Gmail or other Google account can
find the tool in the user's guide. It is called the "inactive
account manager." Facebook also uses an online tool called
"legacy contact." It too can be found in the user's account
preferences. He said everything else in the bill hinges off this
section.
He noted that the chair in a previous committee asked about
forms and was told that the bill does not address forms. Upon
further review, it became clear that power of attorney forms
needed to be addressed because they are part of state statute.
The sponsor therefore suggests including a provision for digital
assets under that form as prescribed in statute.
CHAIR COGHILL invited Ms. Behr to talk about her position on the
Uniform Law Commission and her perspective of SB 16.
2:27:02 PM
DEBORAH E BEHR, Member, Alaska Delegation, Uniform Law
Commission, Juneau, Alaska, stated that Alaska has been a member
of the Uniform Law Commission since 1912. The commission meets
annually to discuss problems for which an interstate solution is
appropriate and desirable. She said senior groups and probate
attorneys brought the issue of access to a decedent's digital
assets to the commission's attention. Probate laws have not kept
pace with advances in technology such as this. She provided an
account of what happens when a spouse is unable to access stored
digital photos because they do not have a contract with the
service provider (custodian); the deceased spouse has the
contract. The typical will does not work, nor does the business
partnership. The information is treated as confidential and the
service provider generally requires a court order for the spouse
or fiduciary to gain access.
She reported that 24 states have enacted this model law, it is
sitting on the governor's desk in 2 states, and 16 other states
have introduced the legislation. A major trust company in Alaska
has endorsed the bill and Google, Facebook and other major
players have stated support for a standard, nationwide solution.
The model law provides an opt-in solution whereby an individual
gives express consent for access to each digital account. For
example, I want my music to go to my brother, my financial
records to go to my wife, and I don't want anybody to look at
certain other things, she said. When the individual opens an
account, a separate screen will pop up asking what they want to
do with their digital assets if they pass on or become
incapacitated. If the individual does not sign the online tool
and there is nothing in the will, the terms of service agreement
will apply and the spouse or family or business partner will not
have access to the digital material.
She advised that the bill provides immunity to the custodian for
good-faith compliance if they act within 60 days. In the case of
a guardianship, the bill has a provision for hearings to
ascertain the extent of the disability. For example, someone who
experiences a disability might be able to handle Facebook but
not a financial account.
2:36:02 PM
SENATOR WIELECHOWSKI asked if there is an age limit for someone
to be able to designate disposition of their digital assets.
MS. BEHR said she would do some follow-up research, but she
understands that young children are able to open a Facebook
account. She opined that doing things appropriately for young
children would probably involve the court.
CHAIR COGHILL offered his understanding that the age limit is 16
to open an online account.
SENATOR WIELECHOWSKI asked how it would work if a minor didn't
want their parents to have access to their digital assets.
MS. BEHR recounted a case in another state where a child
committed suicide and the parents were never able to access the
decedent's digital assets.
SENATOR WIELECHOWSKI asked how jurisdiction is determined.
MS. BEHR said a provision in the bill from the uniform law says
that residency is the determining factor.
2:38:52 PM
CHAIR COGHILL held SB 16 in committee with public testimony
open.