Chapter 262 |
2019 -- S 0592 SUBSTITUTE A Enacted 07/15/2019 |
A N A C T |
RELATING TO PROBATE PRACTICE AND PROCEDURE - REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT |
Introduced By: Senators Lombardi, McCaffrey, Lynch Prata, Conley, and Archambault |
Date Introduced: March 14, 2019 |
It is enacted by the General Assembly as follows: |
SECTION 1. Chapter 33-27 of the General Laws entitled "Access to Decedents' |
Electronic Mail Accounts Act" is hereby repealed in its entirety. |
CHAPTER 33-27 |
Access to Decedents' Electronic Mail Accounts Act |
33-27-1. Short title. |
This chapter shall be known and may be cited as the "Access to Decedents' Electronic |
Mail Accounts Act". |
33-27-2. Definitions. |
As used in this chapter: |
(1) "Electronic mail service provider" means any person who: |
(i) Is an intermediary in sending or receiving electronic mail; and |
(ii) Provides to end-users of electronic mail services the ability to send or receive |
electronic mail. |
(2) "Electronic mail account" means: |
(i) All electronic mail sent or received by an end-user of electronic mail services provided |
by an electronic mail service provider that is stored or recorded by such electronic mail service |
provider in the regular course of providing such services; and |
(ii) Any other electronic information stored or recorded by such electronic mail service |
provider that is directly related to the electronic mail services provided to such end-user by such |
electronic mail service provider, including, but not limited to, billing and payment information. |
33-27-3. Access to decedents' electronic mail. |
An electronic mail service provider shall provide, to the executor or administrator of the |
estate of a deceased person who was domiciled in this state at the time of his or her death, access |
to or copies of the contents of the electronic mail account of such deceased person upon receipt |
by the electronic mail service provider of: |
(1) A written request for such access or copies made by such executor or administrator, |
accompanied by a copy of the death certificate and a certified copy of the certificate of |
appointment as executor and administrator; and |
(2) An order of the court of probate that by law has jurisdiction of the estate of such |
deceased person, designating such executor or administrator as an agent for the subscriber, as |
defined in the Electronic Communications Privacy Act, 18 U.S.C. § 2701, on behalf of his/her |
estate, and ordering that the estate shall first indemnify the electronic mail service provider from |
all liability in complying with such order. |
33-27-4. Violation of federal law. |
Nothing in this chapter shall be construed to require an electronic mail service provider to |
disclose any information in violation of any applicable federal law. |
33-27-5. Severability. |
If any provision of this chapter or the application of it to any person or circumstances is |
held invalid, that invalidity shall not affect other provisions or applications of the chapter, which |
can be given effect without the invalid provision or application, and to this end the provisions of |
this chapter are declared to be severable. |
SECTION 2. Title 33 of the General Laws entitled "PROBATE PRACTICE AND |
PROCEDURE" is hereby amended by adding thereto the following chapter: |
CHAPTER 27.1 |
REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT |
33-27.1-1. Short title. |
This chapter shall be known and may be cited as "The Revised Uniform Fiduciary Access |
to Digital Assets Act.". |
33-27.1-2. Definitions. |
For the purposes of this chapter: |
(1) "Account" means an arrangement under a terms-of-service agreement in which a |
custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides |
goods or services to the user. |
(2) "Agent" means an attorney-in-fact granted authority under a durable or nondurable |
power of attorney. |
(3) "Carries" means engages in the transmission of an electronic communication. |
(4) "Catalogue of electronic communications" means information that identifies each |
person with which a user has had an electronic communication,; the time and date of the |
communication; and the electronic address of the person. |
(5) "Conservator" means a person appointed by a court to administer the property of a |
living individual pursuant to chapter 15 of title 33. The term includes a limited conservator. |
(6) "Content of an electronic communication" means information concerning the |
substance or meaning of the communication which that: |
(i) Has been sent or received by a user; |
(ii) Is in electronic storage by a custodian providing an electronic communication service |
to the public or is carried or maintained by a custodian providing a remote computing service to |
the public; and |
(iii) Is not readily accessible to the public. |
(7) "Court" means a court of competent jurisdiction, including the probate court and the |
superior court. |
(8) "Custodian" means a person who or that carries, maintains, processes, receives, or |
stores a digital asset of a user. |
(9) "Designated recipient" means a person chosen by a user using an online tool to |
administer digital assets of the user. |
(10) "Digital asset" means an electronic record in which an individual has a right or |
interest. The term does not include an underlying asset or liability unless the asset or liability is |
itself an electronic record. |
(11) "Electronic" means relating to technology having electrical, digital, magnetic |
wireless, optical, electromagnetic, or similar capabilities. |
(12) "Electronic communication" has the meaning set forth in 18 U.S.C. § 2510 et seq., as |
amended. |
(13) "Electronic communication service" means a custodian who or that provides to a |
user the ability to send or receive an electronic communication. |
(14) "Fiduciary" means an original, additional, or successor personal representative, |
guardian, conservator, agent, or trustee. |
(15) "Guardian" means a person appointed by the court to make decisions regarding the |
estate of a living individual, including a person appointed pursuant to chapter 15 of title 33. The |
term includes a limited guardian. |
(16) "Information" means data, text, images, videos, sounds, codes, computer programs, |
software, databases, or the like. |
(17) "Online tool" means an electronic service provided by a custodian that allows the |
user, in an agreement distinct from the terms-of-service agreement between the custodian and |
user, to provide directions for disclosure or nondisclosure of digital assets to a third person. |
(18) "Person" means an individual, estate, partnership, association, trust, business or |
nonprofit entity, public corporation, government or governmental subdivision, agency, or |
instrumentality, or other legal entity. |
(19) "Personal representative" means an executor, administrator, special administrator, or |
person who or that performs substantially the same function under law of this state other than this |
chapter. |
(20) "Power of attorney" means a record that grants an agent authority to act in the place |
of a principal. |
(21) "Principal" means an individual who grants authority to an agent in a power of |
attorney. |
(22) "Protected person" means an individual for whom a guardian or conservator has |
been appointed pursuant to chapter 15 title 33. |
(23) "Record" means information that is inscribed on a tangible medium or that is stored |
in an electronic or other medium and is retrievable in perceivable form. |
(24) "Remote computing service" means a custodian that provides to a user computer- |
processing services or the storage of digital assets by means of an electronic communications |
system, as defined in 18 U.S.C. § 2510 et seq., as amended. |
(25) "Terms-of-service agreement" means an agreement that controls the relationship |
between a user and a custodian. |
(26) "Trustee" means a fiduciary with legal title to property under an agreement or |
declaration that creates a beneficial interest in another. The term includes a successor trustee. |
(27) "User" means a person that has an account with a custodian. |
(28) "Will" includes a codicil, a testamentary instrument that only appoints an executor, |
and an instrument that revokes or revises a testamentary instrument. |
33-27.1-3. Applicability. |
(a) This chapter applies to: |
(1) A fiduciary acting under a will or power of attorney executed before, on, or after the |
effective date of this chapter:; |
(2) A personal representative acting for a decedent who died before, on, or after the |
effective date of this chapter.; |
(3) A guardian or conservator appointed before, on, or after the effective date of this |
chapter; and |
(4) A trustee acting under a trust created before, on, or after the effective date of this |
chapter. |
(b) This chapter applies to a custodian if the user resides in this state or resided in this |
state at the time of the user's death. |
(c) This chapter does not apply to a digital asset of an employer used by an employee in |
the ordinary course of the employer's business. |
33-27.1-4. User direction for disclosure of digital assets. |
(a) A user may use an online tool to direct the custodian to disclose to a designated |
recipient or not disclose some or all of the user's digital assets, including the content of electronic |
communications. If the online tool allows the user to modify or delete a direction at all times, a |
direction regarding disclosure using an online tool overrides a contrary direction by the user in a |
will, trust, power of attorney, or other record. |
(b) If a user has not used an online tool to give direction under subsection (a) of this |
section or if the custodian has not provided an online tool, the user may allow or prohibit in a |
will, trust, power of attorney, or other record, disclosure to a fiduciary of some or all of the user's |
digital assets, including the content of electronic communications sent or received by the user. |
(c) A user's direction under subsection (a) or (b) of this section overrides a contrary |
provision in a terms-of-service agreement that does not require the user to act affirmatively and |
distinctly from the user's assent to the terms of service. |
33-27.1-5. Terms-of-service agreement. |
(a) This chapter does not change or impair a right of a custodian or a user under a |
termsof-service agreement to access and use digital assets of the user. |
(b) This chapter does not give a fiduciary or designated recipient any new or expanded |
rights other than those held by the user for whom, or for whose estate, the fiduciary or designated |
recipient acts or represents. |
(c) A fiduciary's or designated recipient's access to digital assets may be modified or |
eliminated by a user, by federal law, or by a terms-of-service agreement if the user has not |
provided direction under § 33-27.1-4. |
33-27.1-6. Procedure for disclosing digital assets. |
(a) When disclosing digital assets of a user pursuant to one or more of §§ 33-27.1-7 |
through 33-27.1-15, the custodian may at its sole discretion: |
(l) Grant a fiduciary or designated recipient full access to the user's account; |
(2) Grant a fiduciary or designated recipient partial access to the user's account sufficient |
to perform the tasks with which the fiduciary or designated recipient is charged; or |
(3) Provide a fiduciary or designated recipient a copy in a record of any digital asset that |
on the date the custodian received the request for disclosure, the user could have accessed if the |
user were alive and had full capacity and access to the account. |
(b) A custodian may assess a reasonable administrative charge for the cost of disclosing |
digital assets under this chapter. |
(c) A custodian need not disclose under this chapter a digital asset deleted by a user. |
(d) If a user directs or a fiduciary requests a custodian to disclose under this chapter |
some, but not all, of the user's digital assets, the custodian need not disclose the assets if |
segregation of the assets would impose an undue burden on the custodian. If the custodian |
believes the direction or request imposes an undue burden, the custodian or fiduciary may seek an |
order from the court to disclose: |
(1) A subset limited by date of the user's digital assets; |
(2) All of the user's digital assets to the fiduciary or designated recipient; |
(3) None of the user's digital assets; or |
(4) All of the user's digital assets to the court for review in camera. |
33-27.1-7. Disclosure of content of electronic communications of deceased user. |
If a deceased user consented or a court directs disclosure of the contents of electronic |
communications of the user, the custodian shall disclose to the personal representative of the |
estate of the user the content of an electronic communication sent or received by the user if the |
representative gives the custodian: |
(1) A written request for disclosure in physical or electronic form; |
(2) A certified copy of the death certificate of the user; |
(3) A certified copy of the letter of appointment of the representative or a small estate |
affidavit or court order; |
(4) Unless the user provided direction using an online tool, a copy of the user's will, trust, |
power of attorney, or other record evidencing the user's consent to disclosure of the content of |
electronic communications; |
(5) A number, username, address, or other unique subscriber or account identifier |
assigned by the custodian to identify the user's account; |
(6) Evidence linking the account to the user; |
(7) A finding by the court that disclosure of the content of electronic communications of |
the user is reasonably necessary for the administration of the estate; and |
(8) If requested by the custodian, a finding by the court that: |
(i) The user had a specific account with the custodian, identifiable by the information |
specified in subsection (5) of this section:; |
(ii) Disclosure of the content of electronic communications of the user would not violate |
18 U.S.C. Section 2701, et seq., as amended, 47 U.S.C. Section 222, et seq., as amended, or other |
applicable law; or |
(iii) Unless the user provided direction using an online tool, the user consented to |
disclosure of the content of electronic communications. |
33-27.1-8. Disclosure of other digital assets of deceased user. |
Unless the user prohibited disclosure of digital assets or the court directs otherwise, a |
custodian shall disclose to the personal representative of the estate of a deceased user a catalogue |
of electronic communications sent or received by the user and digital assets, other than the |
content of electronic communications of the user, if the representative gives the custodian: |
(1) A written request for disclosure in physical or electronic form; |
(2) A certified copy of the death certificate of the user; |
(3) A certified copy of the letter of appointment of the representative or a small estate |
affidavit or court order; and |
(4) A number, username, address, or other unique subscriber or account identifier |
assigned by the custodian to identify the user's account; |
(5) Evidence linking the account to the user; |
(6) A finding by the court that disclosure of the user's digital assets is reasonably |
necessary for administration of the estate; and |
(7) If requested by the custodian, a finding by the court that the user had a specific |
account with the custodian, identifiable by the information specified in subsection (4) of this |
section. |
33-27.1-9. Disclosure of content of electronic communications of principal. |
To the extent a power of attorney expressly grants an agent authority over the content of |
electronic communications sent or received by the principal and unless directed otherwise by the |
principal or the court, a custodian shall disclose to the agent the content if the agent gives the |
custodian: |
(1) A written request for disclosure in physical or electronic form; |
(2) An original or copy of the power of attorney expressly granting the agent authority |
over the content of electronic communications of the principal; |
(3) A certification by the agent, under penalty of perjury, that the power of attorney is in |
effect; |
(4) A number, username, address, or other unique subscriber or account identifier |
assigned by the custodian to identify the principal's account; and |
(5) Evidence linking the account to the principal. |
33-27.1-10. Disclosure of other digital assets of principal. |
Unless otherwise ordered by the court, directed by the principal, or provided by a power |
of attorney, a custodian shall disclose to an agent with specific authority over digital assets or |
general authority to act on behalf of a principal a catalogue of electronic communications sent or |
received by the principal and digital assets, other than the content of electronic communications, |
of the principal if the agent gives the custodian: |
(1) A written request for disclosure in physical or electronic form; |
(2) An original or a copy of the power of attorney that gives the agent specific authority |
over digital assets or general authority to act on behalf of the principal; |
(3) A certification by the agent, under penalty of perjury, that the power of attorney is in |
effect; and |
(4) A number, username, address, or other unique subscriber or account identifier |
assigned by the custodian to identify the principal's account; and |
(5) Evidence linking the account to the principal. |
33-27.1-11. Disclosure of digital assets held in trust when trustee is original user. |
Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose to |
a trustee who or that is an original user of an account any digital asset of the account held in trust, |
including a catalogue of electronic communications of the trustee and the content of electronic |
communications. |
33-27.1-12. Disclosure of content of electronic communications held in trust when |
trustee is not original user. |
Unless otherwise ordered by the court, directed by the user, or provided in a trust, a |
custodian shall disclose to a trustee who or that is not an original user of an account the content |
of an electronic communication sent or received by an original or successor user and carried, |
maintained, processed, received, or stored by the custodian in the account of the trust if the |
trustee gives the custodian: |
(1) A written request for disclosure in physical or electronic form; |
(2) A certified copy of the trust instrument that includes consent to disclosure of the |
content of electronic communications to the trustee; |
(3) An affidavit or memorandum by the trustee, under penalty of perjury, pursuant to § |
34-4-27, that the trust exists and the trustee is a currently acting trustee of the trust; assigned by |
the custodian to identify the trust's account; |
(4) A number, username, address, or other unique subscriber or account identifier |
assigned by the custodian to identify the trust's account; and |
(5) Evidence linking the account to the trust. |
33-27.1-13. Disclosure of other digital assets held in trust when trustee is not original |
user. |
Unless otherwise ordered by the court, directed by the user, or provided in a trust, a |
custodian shall disclose, to a trustee who or that is not an original user of an account, a catalogue |
of electronic communications sent or received by an original or successor user and stored, carried, |
or maintained by the custodian in an account of the trust and any digital assets, other than the |
content of electronic communications, in which the trust has a right or interest if the trustee gives |
the custodian: |
(1) A written request for disclosure in physical or electronic form; |
(2) A certified copy of the trust instrument; |
(3) An affidavit or memorandum by the trustee, under penalty of perjury, pursuant to § |
34-4-27, that the trust exists and the trustee is a currently acting trustee of the trust; |
(4) A number, username, address, or other unique subscriber or account identifier |
assigned by the custodian to identify the trust's account; and |
(5) Evidence linking the account to the trust. |
33-27.1-14. Disclosure of digital assets to guardian or conservator of protected |
person. |
(a) After an opportunity for a hearing under chapter 15 of title 33, the court may grant a |
guardian or conservator access to the digital assets of a protected person. |
(b) Unless otherwise ordered by the court or directed by the user, a custodian shall |
disclose to a guardian or conservator the catalogue of electronic communications sent or received |
by a protected person and any digital assets, other than the content of electronic communications, |
in which the protected person has a right or interest if the guardian or conservator gives the |
custodian: |
(1) A written request for disclosure in physical or electronic form; |
(2) A certified copy of the court order that gives the guardian or conservator authority |
over the digital assets of the protected person; and |
(3) A number, username, address, or other unique subscriber or account identifier |
assigned by the custodian to identify the account of the protected person; |
(4) Evidence linking the account to the protected person; and |
(5) A finding by the court that disclosure of the digital assets of the user is reasonably |
necessary for the performance of the duties of the guardian or conservator. |
(c) A guardian or conservator with general authority to manage the assets of a protected |
person may request a custodian of the digital assets of the protected person to suspend or |
terminate an account of the protected person for good cause. A request made under this section |
must be accompanied by a certified copy of the court order giving the guardian or conservator |
authority over the protected person's property. |
33-27.1-15. Fiduciary duty and authority. |
(a) The legal duties imposed on a fiduciary charged with managing tangible property |
apply to the management of digital assets, including: |
(1) The duty of care; |
(2) The duty of loyalty; and |
(3) The duty of confidentiality. |
(b) A fiduciary's or designated recipient's authority with respect to a digital asset of a |
user: |
(1) Except as otherwise provided in § 33-27.1-4., is subject to the applicable terms of |
service; |
(2) Is subject to other applicable law, including copyright law; |
(3) In the case of a fiduciary, is limited by the scope of the fiduciary's duties; and |
(4) May not be used to impersonate the user. |
(c) A fiduciary with authority over the property of a decedent, protected person, principal, |
or settlor has the right to access any digital asset in which the decedent, protected person, |
principal, or settlor had a right or interest and that is not held by a custodian or subject to a terms- |
of-service agreement. |
(d) A fiduciary acting within the scope of the fiduciary's duties is an authorized user of |
the property of the decedent, protected person, principal, or settlor for the purpose of applicable |
computer fraud and unauthorized computer access laws, including chapter 52 of title 11. |
(e) A fiduciary with authority over the tangible, personal property of a decedent, |
protected person, principal, or settlor.: |
(1) Has the right to access the property and any digital asset stored in it; and |
(2) Is an authorized user for the purpose of computer fraud and unauthorized computer |
access laws, including chapter 52 of title 11. |
(f) A custodian may disclose information in an account to a fiduciary of the user when the |
information is required to terminate an account used to access digital assets licensed to the user. |
(g) A fiduciary of a user may request a custodian to terminate the user's account. A |
request for termination must be in writing, in either physical or electronic form, and accompanied |
by: |
(1) If the user is deceased, a certified copy of the death certificate of the user; |
(2) A certified copy of the letter of appointment of the representative or a small estate |
affidavit, court order, power of attorney, or trust giving the fiduciary authority over the account; |
(3) A number, username, address, or other unique subscriber or account identifier |
assigned by the custodian to identify the user's account; |
(4) Evidence linking the account to the user; and |
(5) If the user is a decedent or protected person: |
(i) A finding by the court that termination of the account is reasonably necessary for the |
administration of the estate of a decedent or the performance of the duties of the conservator or |
guardian; and |
(ii) If requested by the custodian, a finding by the court that the user had a specific |
account with the custodian, identifiable by the information specified in subsection (g)(3) of this |
section. |
(h) This chapter does not affect any right or remedy of a protected person, a principal, a |
beneficiary or an estate against a guardian or conservator, an agent, a trustee, or a personal |
representative, respectively, for any violation of this chapter by such fiduciary. |
33-27.1-16. Custodian compliance and immunity. |
(a) Not later than sixty (60) days after receipt of the information required under §§ 33- |
27.1-7 through 33-27.1-15, a custodian shall comply with a request under this chapter from a |
fiduciary or designated recipient to disclose digital assets or terminate an account. If the custodian |
fails to comply, the fiduciary or designated recipient may apply to the court for an order directing |
compliance. |
(b) An order under subsection (a) of this section directing compliance must contain a |
finding that compliance is not in violation of 18 U.S.C. Section 2702, et seq., as amended. |
(c) Wherever practicable, a custodian shall notify the user or the user's account that a |
request for disclosure or to terminate an account was made under this chapter. |
(d) A custodian may deny a request under this chapter from a fiduciary or designated |
recipient for disclosure of digital assets or to terminate an account if the custodian is aware of any |
lawful access to the account following the receipt of the fiduciary's request. |
(e) This chapter does not limit a custodian's ability to obtain or require a fiduciary or |
designated recipient requesting disclosure or termination under this chapter to obtain a court order |
which: |
(1) Specifies that an account belongs to the protected person or principal; |
(2) Specifies that there is sufficient consent from the protected person or principal to |
support the requested disclosure; and |
(3) Contains a finding required by law other than this chapter. |
(f) A custodian and its officers, employees, and agents are immune from liability for an |
act or omission done in good faith in compliance with this chapter, the Electronic |
Communications Privacy Act, 18 U.S.C. § 2701 et seq., and all applicable state and federal laws. |
33-27.1-17. Uniformity of application and construction. |
In applying and construing this uniform act, consideration must be given to the need to |
promote uniformity of the law with respect to its subject matter among states that enact it. |
33-27.1-18. Relation to electronic signatures Electronic Signatures in global Global |
and national commerce act National Commerce Act. |
This chapter modifies, limits, or supersedes the Electronic Signatures in Global and |
National Commerce Act. 15 U.S.C. Section 7001, et seq., but does not modify, limit, or supersede |
15 U.S.C. Section 700l(c), or authorize electronic delivery of any of the notices described in 15 |
U.S.C. Section 7003(b). |
33-27.1-19. Severability. |
If any provision of this chapter or its application to any person or circumstance is held |
invalid, the invalidity does not affect other provisions or applications of this chapter which can be |
given effect without the invalid provision or application, and to this end the provisions of this |
chapter are severable. |
SECTION 3. This act shall take effect upon passage. |
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LC002098/SUB A |
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