Legislature(2017 - 2018)BELTZ 105 (TSBldg)
03/07/2017 01:30 PM Senate LABOR & COMMERCE
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| Audio | Topic |
|---|---|
| Start | |
| SB16 | |
| SB32 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 16 | TELECONFERENCED | |
| + | SB 32 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
SB 16-FIDUCIARY ACCESS TO DIGITAL ASSETS
1:32:06 PM
CHAIR COSTELLO announced the consideration of SB 16 and noted
that this was the first hearing.
1:32:15 PM
SENATOR SHELLY HUGHES, Alaska State Legislature, sponsor of SB
16, stated her belief that technological advances are key to
Alaska's economic future. She noted the advances in online
digital tools, storage devices, social media sites, music and
photos that individuals use and retain and questioned what would
happen to these personal items when someone passes away. SB 16
provides guidance for this internet age that is lacking in
current law. It 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 in order to provide access to digital assets to loved ones
in other states.
She listed the entities that support the bill: National Academy
of Elder Law Attorneys, Facebook, Google, Center for Democracy
and Technology, AARP, and others.
1:35:01 PM
BUDDY WHITT, Staff, Senator Shelley Hughes, Alaska State
Legislature, delivered the sectional analysis for SB 16:
[Original punctuation provided.]
Section 1 of the bill adds a new chapter, the Revised
Fiduciary Access to Digital Assets Act, to AS 13.
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.
Sec. 13.63.020 sets out the relationship of the terms-
of-service agreement to the fiduciary. This section
clarifies that to the extent a custodian gives a
fiduciary access to digital assets, the terms- of -
service agreement apply as well to the fiduciary.
Sec. 13.63.030 sets out procedures for disclosing
digital assets. Subsection (a) gives the custodian of
digital assets a choice of methods for disclosing
digital assets to an authorized fiduciary. Subsection
(b) allows the custodian to charge a reasonable
administrative charge for the cost of disclosure.
Subsection (c) states that a deleted digital asset of
the user need not be disclosed, because deletion is a
good indicator that the user did not intend access to
the fiduciary. Subsection (d) addresses requests that
are unduly burdensome and authorizes a process to
obtain court direction on the request.
Sec. 13.63.040 sets out process for disclosure of the
content of electronic communications of a deceased
user. This section gives the personal representative
of the estate access to digital assets if the user
consented or if the court orders disclosure. Certain
procedures set out in the section must be met.
Sec. 13.63.050 sets out procedures for the disclosure
of other digital assets of a deceased user. This
section gives the personal representative access to
the catalogue of electronic communications and other
digital assets, if the requirements of the section are
met.
Sec. 13.63.060 sets out procedures for disclosure of
content of electronic communications of a principal
under a power of attorney. The procedures and process
are similar to those given a personal representative
under Sec. 13.63.040.
Sec. 13.63.070 sets out procedures for disclosure of
other digital assets of the principal under a power of
attorney. The procedures and process are similar to
those given to a personal representative under Sec.
13.63.050.
Sec. 13.63.080 sets out procedures for disclosure of
digital assets when held in a trust when the trustee
is the original user. This section provides that
trustee who is an original account holder can assess
all digital assets held in the trust.
Sec. 13.63.090 sets out procedures for disclosure of
content of electronic communications held in trust
when the trustee is not the original user. The
procedures and process are similar to those given a
personal representative under Sec. 13.63.040.
Sec. 13.63.100 sets out procedures for disclosure of
other digital assets held in trust when the trustee is
not the original user. The procedures and process are
similar to those given to a personal representative
under Sec. 13.63.050. The trustee also must supply
information about the trust specified in this section.
Sec. 13.63.110 sets out procedures for disclosure of
digital assets to conservator of a protected person.
This section applies when a conservator is appointed
by the court to handle the assets of protected person
who is physically or mentally unable to manage those
assets. The proposed section provides an opportunity
for a hearing concerning disclosure. Otherwise the
procedures and process are similar to those given a
personal representative under Sec. 13.63.050. The
proposed section finally sets out a process to suspend
or terminate an account of a protected person for good
cause.
Sec. 13.63.120 sets out standards of a fiduciary's
duty and authority under this chapter.
Sec. 13.63.130 sets out the standards for the
custodian of digital assets compliance with the act.
Subsection (f) immunizes the custodian of digital
assets and its officers, employees, and agents from
liability for an act or omission done in good faith in
compliance with this chapter.
Secs. 13.63.140 and 13.63.150 are standard provisions
included in uniform acts to facilitate their
implementation among the states that enact them.
Sec. 13.63.050 sets out procedures for the disclosure
of other digital assets of a deceased user. This
section gives the personal representative access to
the catalogue of electronic communications and other
digital assets, if the requirements of the section are
met.
Sec. 13.63.060 sets out procedures for disclosure of
content of electronic communications of a principal
under a power of attorney. The procedures and process
are similar to those given a personal representative
under Sec. 13.63.040.
Sec. 13.63.070 sets out procedures for disclosure of
other digital assets of the principal under a power of
attorney. The procedures and process are similar to
those given to a personal representative under Sec.
13.63.050.
Sec. 13.63.080 sets out procedures for disclosure of
digital assets when held in a trust when the trustee
is the original user. This section provides that
trustee who is an original account holder can assess
all digital assets held in the trust.
Sec. 13.63.090 sets out procedures for disclosure of
content of electronic communications held in trust
when the trustee is not the original user. The
procedures and process are similar to those given a
personal representative under Sec. 13.63.040.
Sec. 13.63.100 sets out procedures for disclosure of
other digital assets held in trust when the trustee is
not the original user. The procedures and process are
similar to those given to a personal representative
under Sec. 13.63.050. The trustee also must supply
information about the trust specified in this section.
Sec. 13.63.110 sets out procedures for disclosure of
digital assets to conservator of a protected person.
This section applies when a conservator is appointed
by the court to handle the assets of protected person
who is physically or mentally unable to manage those
assets. The proposed section provides an opportunity
for a hearing concerning disclosure. Otherwise the
procedures and process are similar to those given a
personal representative under Sec. 13.63.050. The
proposed section finally sets out a process to suspend
or terminate an account of a protected person for good
cause.
Sec. 13.63.120 sets out standards of a fiduciary's
duty and authority under this chapter.
Sec. 13.63.130 sets out the standards for the
custodian of digital assets compliance with the act.
Subsection (f) immunizes the custodian of digital
assets and its officers, employees, and agents from
liability for an act or omission done in good faith in
compliance with this chapter.
Secs. 13.63.140 and 13.63.150 are standard provisions
included in uniform acts to facilitate their
implementation among the states that enact them.
Sec. 13.63.160 establishes the coverage of digital
assets under the chapter. In the chapter, a digital
assets does not apply to the underlying asset or
liability unless the asset or liability is itself an
electronic record. The chapter does not apply to the
digital asset of an employer used by the employee in
the ordinary course of the employer's business.
Sec. 13.63.170 sets out the application of the chapter
if the user resides in Alaska or resided in Alaska at
the time of the user's death.
Sec. 13.63.190 sets out definitions of terms used in
the chapter.3
Section 2 of the bill sets out applicability of the
Act.
1:41:27 PM
MR. WHITT said Deborah Behr will answer technical questions
about the bill.
SENATOR GARDNER asked if a fiduciary would have access to all
financial information and whether the bill provides that they
would not have access to other property.
MR. WHITT clarified that a fiduciary is appointed to manage
property when someone dies or loses capacity to manage it
him/herself. The bill provides access to anything the fiduciary
was authorized to manage.
SENATOR GARDNER asked how the fiduciary knows what has value and
is relevant. She questioned the executor's role in the process.
MR. WHITT deferred the question to Ms. Behr.
1:43:51 PM
CHAIR COSTELLO said the definition for "fiduciary" is on page
13.
SENATOR STEVENS said he, too, is concerned about the privacy of
certain records.
CHAIR COSTELLO asked about the effective date and applicability
clause. On page 13, line 6, it mentions "a person acting under a
will or power of attorney executed before, on, or after the
effective date of this Act." She asked if SB 16 will be a
retroactive statute.
MR. WHITT said he would follow up with an answer.
1:45:25 PM
SENATOR MEYER asked how other states handle this.
MR. WHITT replied 16 states have passed similar legislation.
Most states saw a problem with what would happen with digital
assets.
1:46:11 PM
DEBORAH BEHR, Member of the Alaska Delegation, Uniform Law
Commission, said the issue of how to handle digital assets when
someone passes away has been a problem in many states because
it's not addressed in the typical will. She provided an account
of what happens when a spouse can't get access to digital photos
because they do not have a contract with the service provider;
the deceased spouse has the contract. The typical will does not
work, nor does the business partnership.
She clarified that 23 states have passed this model law and 17
others are considering it. The Alaska Uniform Law Delegation
approached the sponsor saying this bill will be good for
seniors.
With regard to applicability, SB 16 becomes effective 90 days
after it is signed. It is not retroactive. It applies to
existing wills and contracts.
She said the question about privacy is important. SB 16 is an
opt-in statute. If nothing is 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. It is
similar to the designated beneficiary in retirement accounts
that is separate from the will.
She emphasized that this is a thoroughly vetted process.
CHAIR COSTELLO said she is still confused about the
applicability. She referenced page 13 and asked for
clarification.
1:53:24 PM
SENATOR STEVENS stressed the importance of updating wills to
include digital assets.
MS. BEHR said it is not necessary, if you have no digital
assets, but most probate attorneys are asking how the person
wants digital assets handled.
SENATOR GARDNER related her personal experience as a trustee for
her sister. She asked who judges who has access to digital
assets.
MS. BEHR stressed that the bill provides for an opt-in system. A
person can determine whether they want anyone to see their
emails after they die. If a person does not give consent, the
most a fiduciary can do is get a catalogue of communication. She
provided examples of who would be a fiduciary; the husband if
the wife died, or someone appointed as a fiduciary. To be a
fiduciary requires a court order and includes specific duties.
CHAIR COSTELLO asked whether a person is liable for unknowingly
accessing a Facebook page of a decedent.
MS. BEHR said she believes that is controlled by other federal
laws, not this statute.
CHAIR COSTELLO asked if this law will change the forms that are
available at the office supply stores.
MS. BEHR said this bill does not address forms. It's an overlay
statute.
CHAIR COSTELLO asked if there have been unintended consequences
in other states that have passed similar legislation.
MS. BEHR said she is not aware of any unintended consequences.
2:01:35 PM
SENATOR HUGHES said the third tier in the bill is the terms of
service agreement. She asked how she would get photos on Flicker
if she isn't designated and her husband passes away.
MS. BEHR said she could hope that her husband used the online
tool designated in the bill or updated his will, otherwise she
would be denied access to those photos.
MR. WHITT added that with advances in technology comes the duty
to look at this sort of thing and ensure the family has access
to records.
SENATOR STEVENS asked if the online tool is done generally or
whether each provider has its own style.
MS. BEHR said each provider has its own style.
2:05:33 PM
MR. WHITT added that you can designate who has access to your
Facebook page.
SENATOR STEVENS said only his staff has been on his Facebook
page.
MR. WHITT suggested he discuss access with his staff.
SENATOR HUGHES asked if there is an educational effort to ensure
that seniors, in particular, are aware of these online tools.
MR. WHITT said it is becoming a larger issue and AARP is
addressing how to educate members.
2:07:32 PM
CHAIR COSTELLO opened public testimony for SB 16.
SENATOR HUGHES thanked the committee for hearing the bill.
CHAIR COSTELLO held SB 16 in committee for future consideration.
Public testimony was held open.