2017 -- S 0804

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LC002405

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2017

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A N   A C T

RELATING TO PROBATE PRACTICE AND PROCEDURE -- REVISED UNIFORM

FIDUCIARY ACCESS TO DIGITAL ASSETS ACT

     Introduced By: Senator Frank S. Lombardi

     Date Introduced: April 25, 2017

     Referred To: Senate Judiciary

     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Electronic Mail Accounts Act" is hereby repealed in its entirety.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

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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 manage the estate of a living

individual. The term includes a limited conservator.

     (6) "Content of an electronic communication" means information concerning the

substance or meaning of the communication which:

     (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 the probate court.

     (8) "Custodian" means a person 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 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

person of a living individual. The term includes a limited guardian.

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     (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 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. The term includes an individual for whom an application for the appointment of a

guardian or conservator is pending.

     (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, testamentary instrument that only appoints an executor,

and 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;

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     (2) A personal representative acting for a decedent who died before, on, or after the

effective date of this chapter;

     (3) A guardianship or conservatorship proceeding commenced 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 terms-

of-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 under this chapter, the custodian may at its

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sole discretion:

     (1) 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; and

     (5) If requested by the custodian:

     (i) A number, username, address, or other unique subscriber or account identifier

assigned by the custodian to identify the user's account;

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     (ii) Evidence linking the account to the user; or

     (iii) A finding by the court that:

     (A) The user had a specific account with the custodian, identifiable by the information

specified in subsection (i) of this section;

     (B) Disclosure of the content of electronic communications of the user would not violate

18 U.S.C. §2701 et seq., as amended, 47 U.S.C. §222 et seq., as amended, or other applicable

law;

     (iv) Unless the user provided direction using an online tool, the user consented to

disclosure of the content of electronic communications; or

     (v) Disclosure of the content of electronic communications of the user is reasonably

necessary for administration of the estate.

     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) If requested by the custodian:

     (i) A number, username, address, or other unique subscriber or account identifier

assigned by the custodian to identify the user's account;

     (ii) Evidence linking the account to the user;

     (iii) An affidavit stating that disclosure of the user's digital assets is reasonably necessary

for administration of the estate; or

     (iv) A finding by the court that:

     (A) The user had a specific account with the custodian, identifiable by the information

specified in subsection (4)(i) of this section; or

     (B) Disclosure of the user's digital assets is reasonably necessary for administration of the

estate.

     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

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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; and

     (4) If requested by the custodian:

     (i) A number, username, address, or other unique subscriber or account identifier

assigned by the custodian to identify the principal's account; or

     (ii) 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) If requested by the custodian:

     (i) A number, username, address, or other unique subscriber or account identifier

assigned by the custodian to identify the principal's account; or

     (ii) 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 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 original user.

     Unless otherwise ordered by the court, directed by the user, or provided in a trust, a

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custodian shall disclose to a trustee 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) A certification by the trustee, under penalty of perjury, that the trust exists and the

trustee is a currently acting trustee of the trust; and

     (4) If requested by the custodian:

     (i) A number, username, address, or other unique subscriber or account identifier

assigned by the custodian to identify the trust's account; or

     (ii) 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 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) A certification by the trustee, under penalty of perjury, that the trust exists and the

trustee is a currently acting trustee of the trust; and

     (4) If requested by the custodian:

     (i) A number, username, address, or other unique subscriber or account identifier

assigned by the custodian to identify the trust's account; or

     (ii) 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

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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) If requested by the custodian:

     (i) A number, username, address, or other unique subscriber or account identifier

assigned by the custodian to identify the account of the protected person; or

     (ii) Evidence linking the account to the protected person.

     (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

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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;

and

     (3) If requested by the custodian:

     (i) A number, username, address, or other unique subscriber or account identifier

assigned by the custodian to identify the user's account;

     (ii) Evidence linking the account to the user; or

     (iii) A finding by the court that the user had a specific account with the custodian,

identifiable by the information specified in subsection (g)(3)(i) of this section.

     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. §2702 et seq., as amended.

     (c) A custodian may notify the user 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

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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.

     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 in global and national commerce act.

     This chapter modifies, limits, or supersedes the Electronic Signatures in Global and

National Commerce Act, 15 U.S.C. §7001 et seq., but does not modify, limit, or supersede 15

U.S.C. §7001(c), or authorize electronic delivery of any of the notices described in 15 U.S.C.

§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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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO PROBATE PRACTICE AND PROCEDURE -- REVISED UNIFORM

FIDUCIARY ACCESS TO DIGITAL ASSETS ACT

***

     This act would regulate fiduciary and designated recipient access to digital assets relating

to probate practice and procedure by creating the "Revised Uniform Fiduciary Access to Digital

Assets Act" to promote uniformity of the law among states that enact it.

     This act would take effect upon passage.

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