PA 16-145—sHB 5606

Judiciary Committee

AN ACT CONCERNING THE CONNECTICUT REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT

SUMMARY: This act establishes the "Connecticut Revised Uniform Fiduciary Access to Digital Assets Act," extending a fiduciary's existing authority over a represented person's tangible assets to include the person's digital assets (i. e. , electronic records, such as emails, social media accounts, digital files, and virtual currency). The act specifies the conditions under which fiduciaries have the right to access digital assets.

The act applies to four types of fiduciaries, regardless of when their authority became effective:

1. executors or administrators of deceased persons' estates;

2. court-appointed conservators of protected persons' estates;

3. agents appointed by principals under powers of attorney; and

4. trustees acting on behalf of settlors (i. e. , trustors).

The act establishes the processes fiduciaries must follow to gain access to a represented person's digital assets or terminate an account used to access such assets. A fiduciary must send a written request to the asset's custodian along with (1) a certified copy of the document granting the fiduciary his or her authority, such as a letter of appointment, court order, or certification of trust, and (2) certain other information the custodian requests, such as account verification.

The custodian is the person who carries, maintains, processes, receives, or stores an account holder's digital asset. A custodian must generally comply with a fiduciary's request within 60 days of receiving it and is immune from any liability for an act or omission done in good faith compliance. The act applies to a custodian if the account holder (i. e. , user) resides in Connecticut or did so when he or she died.

Under the act, users may use an online tool to direct a custodian to allow or limit access to a person (designated recipient) they choose to administer their digital assets. (An “online tool” is an electronic service provided by a custodian that allows a user, in an agreement distinct from a service agreement, to direct the custodian to disclose or restrict the user's digital assets to a third person. )

A fiduciary or designated recipient has the same access rights as the represented person. A custodian's service agreement that restricts access to the user's digital assets is void unless the user consents separately.

The act does not apply to an employer's digital assets used by employees in the ordinary course of business.

It replaces the provisions under prior law that required email service providers to give estate executors and administrators access to, or copies of, the email account of a decedent domiciled in Connecticut when he or she died.

EFFECTIVE DATE: October 1, 2016

4 — USER'S DIRECTION FOR DISCLOSING DIGITAL ASSETS

The act establishes a process for determining a user's intent with respect to his or her digital assets.

Under the act, if a custodian's online tool allows a user, at all times, to modify or delete a direction about disclosing digital assets to a designated recipient, the online direction overrides the user's contrary direction in a will, trust, power of attorney, or other record.

If the custodian does not provide an online tool or the user does not use the one provided, the user may allow or prohibit disclosure to a fiduciary in a will, trust, power of attorney, or other record. The user's direction can apply to some or all of his or her digital assets, including electronic communications the user sent or received.

A user's direction in an online tool or other record overrides a service agreement's contrary provision if the agreement does not require the user to act on that provision affirmatively and distinctly when assenting to the service agreement.

7-14 — FIDUCIARY'S ACCESS TO DIGITAL ASSETS

The act distinguishes the level of access a fiduciary may have to a user's digital assets and the conditions under which the custodian must grant such access.

Level of Access

Unless otherwise ordered by a court, directed by the represented person, or provided by the document granting authority, the act allows a fiduciary to access:

1. the content of electronic communications (i. e. , information on their substance or meaning), to the extent allowed under federal privacy laws (i. e. , content disclosure);

2. the “catalogue of electronic communications” sent or received by the represented person; and

3. other digital assets, excluding the content of electronic communications, in which the represented person has a right or interest (or had a right or interest at the time of death).

Under the act, “catalogue of electronic communications” means the (1) identifying information and email address of each person with whom the account holder communicated and (2) time and date of the communication.

The act allows fiduciaries to access a user's catalogue of electronic communications and other digital assets unless the user prohibited their disclosure or the court directs otherwise. But it generally limits a fiduciary's access to the content of electronic communications by requiring the user to have expressly authorized, or a court to order, their disclosure. It creates an exception for trustees who are the original users of an account, as described below.

Written Request and Document Granting Access

A fiduciary's request to the custodian for access to digital assets must be in writing and accompanied by the following documents, as applicable:

1. Estate executors must provide a certified copy of the (a) certificate of appointment as executor and (b) user's death certificate.

2. Agents appointed under powers of attorney must provide an original or copy of the power of attorney granting the agent authority over the principal's digital assets and a certification, under penalty of perjury, that the power of attorney is in effect.

3. Conservators must provide a certified copy of the court order giving them authority over the protected person's digital assets.

4. Trustees who are not the original users of an account must provide a certified copy of the trust instrument that consents to the disclosure and a certification by the trustee, under penalty of perjury, that the trust exists and the trustee is currently acting as trustee of the trust.

Custodian's Request for Additional Information

Regardless of the level of access requested, fiduciaries must also provide the following information if requested by the custodian:

1. a number, username, address, or other unique subscriber or account identifier the custodian assigned to identify the user's account or

2. evidence linking the account to the user, principal, trust, or conserved person, as applicable.

Additional Requirements for Certain Fiduciaries

In addition to the requirements described above, other requirements apply to executors and conservators depending on the level of access requested.

Executors. Unless the user provided online directions, an executor requesting content disclosure must provide a copy of the user's will, trust, power of attorney, or other record showing the user's consent to such disclosure.

In addition, the custodian may ask an executor to provide a court record or order finding that:

1. the user had a specific identifiable account with the custodian,

2. the user consented to the disclosure of the content (unless he or she provided online directions),

3. disclosure would not violate federal electronic communications or consumer privacy laws or other applicable law, or

4. disclosure is reasonably necessary in administering the estate.

If the executor requests access to a catalogue of electronic communications or other digital assets, the custodian may ask for (1) an affidavit or a court order stating that such disclosure is reasonably necessary for administering the estate or (2) a court order stating that the user had a specific identifiable account with the custodian.

Conservators. A court may grant a conservator access to electronic communications and other digital assets after the opportunity for a hearing, as is required for accessing a protected person's tangible assets under existing law.

A conservator with general authority to manage the assets of a conserved person may ask a custodian to suspend or terminate the person's account for good cause. Such a request must be accompanied by a certified copy of the certificate of appointment giving the conservator authority over the person's property.

Trustee Who is an Account's Original User

A custodian must disclose to a trustee who is an account's original user any digital asset of the account held in trust, including a catalogue of electronic communications of the trustee and the content of electronic communications.

5, 6 & 16 — CUSTODIAN'S COMPLIANCE AND PROCEDURE FOR DISCLOSURE

Terms-of-Service Agreement ( 5)

The act specifies that it does not change or impair a custodian's or user's rights under a service agreement to access and use the user's digital assets.

Compliance in General ( 16)

A custodian must comply within 60 days after receiving all required documents from a fiduciary or a designated recipient to disclose digital assets or terminate an account. If the custodian fails to comply, the fiduciary or designated recipient may apply for a court order that directs compliance. An order directing compliance must state that such compliance would not violate federal requirements regarding voluntary disclosure of customer communications or records.

Compliance When User is Alive ( 16)

When a user is still alive, the custodian may (1) notify the user that a request was made to disclose information or terminate an account; (2) deny a request if the custodian is aware of any lawful access to the account following the receipt of the fiduciary's request; or (3) obtain, or require a requestor to obtain, a court order.

The court order must specify:

1. that the account belongs to a conserved person or principal;

2. that there is sufficient consent from the conserved person or principal to support the requested disclosure; and

3. any findings required by law other than the act's provisions.

Procedure for Disclosing Digital Assets ( 6)

When disclosing a user's digital assets, the custodian may:

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.

A custodian need not disclose a digital asset a user deleted.

Disclosure of Digital Assets ( 6)

Fees. A custodian may charge a reasonable administrative fee for the cost of disclosing digital assets.

Undue Burden. A custodian directed or asked to disclose some of a user's digital assets does not have to do so if separating them would unduly burden the custodian. In such a case, the custodian or fiduciary may seek a court order to disclose:

1. a subset, limited by date, of the digital assets;

2. all of the digital assets to the fiduciary or designated recipient;

3. none of the digital assets; or

4. all of the digital assets to the court for in camera review (in private) in order to issue an order.

15 — FIDUCIARY'S DUTIES AND AUTHORITY

Under the act, the legal duties that apply to fiduciaries charged with managing tangible property also apply to fiduciaries managing digital assets. These include the duty of care, loyalty, and confidentiality.

A fiduciary's or designated recipient's authority with respect to a user's digital asset (1) is subject to copyright and other applicable law, (2) is limited by the scope of the fiduciary's duties, (3) may not be used to impersonate the user, and (4) is subject to any applicable terms-of-service agreement that was not overridden by the user's direction.

Fiduciaries with authority over the property of a decedent, conserved person, principal, or settlor (i. e. , trustor) have the right to access any digital asset in which the decedent, conserved 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.

Fiduciaries acting within the scope of their duties are authorized users of the property of the decedent, conserved person, principal, or settlor for the purpose of the laws that apply to computer fraud and unauthorized computer access.

Fiduciaries with authority over the tangible, personal property of a decedent, conserved person, principal, or settlor (1) have the right to access the property and any digital asset stored in it and (2) are authorized users for the purpose of the laws that apply to computer fraud and unauthorized computer access.

15 — TERMINATING AN ACCOUNT

A custodian may disclose information in a user's account to a fiduciary when the information is required to terminate an account used to access digital assets licensed to the user.

A fiduciary request to a custodian to terminate a user's account must be in writing and include:

1. a certified copy of the user's death certificate, if the user is deceased;

2. a certified copy of the applicable document granting the fiduciary authority over the account; and

3. if requested by the custodian, (a) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account; (b) evidence linking the account to the user; or (c) a court finding that the user had a specific account with the custodian that is identifiable by the information specified above.

17 & 18 — EFFECT ON OTHER LAWS

The act specifies that anyone applying and construing its provisions must consider the need to promote uniformity among other states that also adopt these provisions.

It also specifies that its provisions modify, limit, or supersede the federal Electronic Signatures in Global and National Commerce Act (E-SIGN), except for the consumer disclosure requirements (15 U. S. C. 7001, et seq. ) (see BACKGROUND). The act does not authorize electronic delivery of the notices described under E-SIGN, such as court orders, notices, or official documents (15 U. S. C. 7003(b)).

BACKGROUND

E-SIGN Act

The ESIGN Act provides that a contract or signature may not be denied legal effect, validity, or enforceability solely because it is in electronic form. A state statute, regulation, or other rule of law may modify, limit, or supersede the ESIGN provisions. It generally does not apply to a contract or other record that governs the creation and execution of wills, codicils, or testamentary trusts (P. L. 106–229).

OLR Tracking: MK; RP; VR; bs