HF 200

as introduced - 89th Legislature (2015 - 2016) Posted on 01/15/2015 01:55pm

A bill for an act
relating to civil law; enacting the Uniform Fiduciary Access to Digital Assets
Act; proposing coding for new law as Minnesota Statutes, chapter 521A.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [521A.01] SHORT TITLE.
new text end

new text begin This chapter may be cited as the "Uniform Fiduciary Access to Digital Assets Act."
new text end

Sec. 2.

new text begin [521A.02] DEFINITIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Applicability. new text end

new text begin The definitions in this section apply to this chapter.
new text end

new text begin Subd. 2. new text end

new text begin Account holder. new text end

new text begin "Account holder" means a person that has entered into a
terms-of-service agreement with a custodian or a fiduciary for the person.
new text end

new text begin Subd. 3. new text end

new text begin Agent. new text end

new text begin "Agent" means an attorney-in-fact granted authority under a
durable or nondurable power of attorney.
new text end

new text begin Subd. 4. new text end

new text begin Carries. new text end

new text begin "Carries" means engages in the transmission of electronic
communications.
new text end

new text begin Subd. 5. new text end

new text begin Catalog of electronic communications. new text end

new text begin "Catalog of electronic
communications" means information that identifies each person with which an account
holder has had an electronic communication, the time and date of the communication,
and the electronic address of the person.
new text end

new text begin Subd. 6. new text end

new text begin Conservator. new text end

new text begin "Conservator" means a person appointed by a court
to manage the estate of a living individual. The term includes limited or unlimited
conservators appointed pursuant to section 524.5-401.
new text end

new text begin Subd. 7. new text end

new text begin Content of an electronic communication. new text end

new text begin "Content of an electronic
communication" means information concerning the substance or meaning of the
communication that:
new text end

new text begin (1) has been sent or received by the account holder;
new text end

new text begin (2) 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
new text end

new text begin (3) is not readily accessible to the public.
new text end

new text begin Subd. 8. new text end

new text begin Court. new text end

new text begin "Court" has the meaning given in section 524.1-201, clause (9).
new text end

new text begin Subd. 9. new text end

new text begin Custodian. new text end

new text begin "Custodian" means a person that carries, maintains, processes,
receives, or stores a digital asset of an account holder.
new text end

new text begin Subd. 10. new text end

new text begin Digital asset. new text end

new text begin "Digital asset" means a record that is electronic. The term
does not include an underlying asset or liability unless the asset or liability is itself a
record that is electronic.
new text end

new text begin Subd. 11. new text end

new text begin Electronic. new text end

new text begin "Electronic" means relating to technology having electrical,
digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
new text end

new text begin Subd. 12. new text end

new text begin Electronic communication. new text end

new text begin "Electronic communication" has the
meaning given in United States Code, title 18, section 2510(12), as amended.
new text end

new text begin Subd. 13. new text end

new text begin Electronic communication service. new text end

new text begin "Electronic communication service"
means a custodian that provides to an account holder the ability to send or receive an
electronic communication.
new text end

new text begin Subd. 14. new text end

new text begin Fiduciary. new text end

new text begin "Fiduciary" means an original, additional, or successor
personal representative, conservator, agent, or trustee.
new text end

new text begin Subd. 15. new text end

new text begin Governing instrument. new text end

new text begin "Governing instrument" means a will, trust,
instrument creating a power of attorney, or other dispositive or nominative instrument.
new text end

new text begin Subd. 16. new text end

new text begin Information. new text end

new text begin "Information" means data, text, images, videos, sounds,
codes, computer programs, software, databases, or similar material.
new text end

new text begin Subd. 17. new text end

new text begin Person. new text end

new text begin "Person" means an individual, estate, business or nonprofit entity,
public corporation, government or governmental subdivision, agency, instrumentality,
or other legal entity.
new text end

new text begin Subd. 18. new text end

new text begin Personal representative. new text end

new text begin "Personal representative" has the meaning
given in section 524.1-201.
new text end

new text begin Subd. 19. new text end

new text begin Power of attorney. new text end

new text begin "Power of attorney" means a record that grants an
agent authority to act in the place of a principal, under chapter 523.
new text end

new text begin Subd. 20. new text end

new text begin Principal. new text end

new text begin "Principal" means an individual who grants authority to an
agent in a power of attorney.
new text end

new text begin Subd. 21. new text end

new text begin Protected person. new text end

new text begin "Protected person" means an individual for whom a
conservator has been appointed. The term includes an individual for whom an application
for the appointment of a conservator is pending.
new text end

new text begin Subd. 22. new text end

new text begin Record. new text end

new text begin "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.
new text end

new text begin Subd. 23. new text end

new text begin Remote computing service. new text end

new text begin "Remote computing service" means a
custodian that provides to an account holder computer processing services or the storage
of digital assets by means of an electronic communications system, as defined in United
States Code, title 18, section 2510(14), as amended.
new text end

new text begin Subd. 24. new text end

new text begin Terms-of-service agreement. new text end

new text begin "Terms-of-service agreement" means an
agreement that controls the relationship between an account holder and a custodian.
new text end

new text begin Subd. 25. new text end

new text begin Trustee. new text end

new text begin "Trustee" means a fiduciary with legal title to property pursuant
to an agreement or declaration that creates a beneficial interest in another pursuant to the
Uniform Probate Code. The term includes a successor trustee.
new text end

new text begin Subd. 26. new text end

new text begin Will. new text end

new text begin "Will" includes a codicil, testamentary instrument that only appoints
an executor and an instrument that revokes or revises a testamentary instrument.
new text end

Sec. 3.

new text begin [521A.03] APPLICABILITY.
new text end

new text begin (a) This chapter applies to:
new text end

new text begin (1) a fiduciary or agent acting under a will or power of attorney executed before,
on, or after the effective date of this act;
new text end

new text begin (2) a personal representative acting for a decedent who died before, on, or after the
effective date of this act;
new text end

new text begin (3) a conservatorship proceeding, whether pending in a court or commenced before,
on, or after the effective date of this act; and
new text end

new text begin (4) a trustee acting under a trust created before, on, or after the effective date
of this act.
new text end

new text begin (b) 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.
new text end

Sec. 4.

new text begin [521A.04] ACCESS BY PERSONAL REPRESENTATIVE TO DIGITAL
ASSET OF DECEDENT.
new text end

new text begin Subject to section 521A.08, paragraph (b), and unless otherwise ordered by the court
or provided in the will of a decedent, the personal representative of the decedent has
the right to access:
new text end

new text begin (1) the content of an electronic communication that the custodian is permitted to
disclose under the Electronic Communications Privacy Act, United States Code, title
18, section 2702(b), as amended;
new text end

new text begin (2) any catalog of electronic communications sent or received by the decedent; and
new text end

new text begin (3) any other digital asset in which at death the decedent had a right or interest.
new text end

Sec. 5.

new text begin [521A.05] ACCESS BY CONSERVATOR TO DIGITAL ASSET OF
PROTECTED PERSON.
new text end

new text begin Subject to section 521A.08, paragraph (b), the court, after an opportunity for hearing
under chapter 524, the Uniform Probate Code, may grant a conservator the right to access:
new text end

new text begin (1) the content of an electronic communication that the custodian is permitted to
disclose under the Electronic Communications Privacy Act, United States Code, title
18, section 2702(b), as amended;
new text end

new text begin (2) any catalog of electronic communications sent or received by the protected
person; and
new text end

new text begin (3) any other digital asset in which the protected person has a right or interest.
new text end

Sec. 6.

new text begin [521A.06] ACCESS BY AGENT TO DIGITAL ASSET OF PRINCIPAL.
new text end

new text begin (a) To the extent a power of attorney expressly grants an agent authority over the
content of an electronic communication of the principal and subject to section 521A.08,
paragraph (b), the agent has the right to access the content of an electronic communication
that the custodian is permitted to disclose under the Electronic Communications Privacy
Act, United States Code, title 18, section 2702(b), as amended.
new text end

new text begin (b) Subject to section 521A.08, paragraph (b), and unless otherwise ordered by the
court or provided by a power of attorney, an agent has the right to access:
new text end

new text begin (1) any catalog of electronic communications sent or received by the principal; and
new text end

new text begin (2) any other digital asset in which the principal has a right or interest.
new text end

Sec. 7.

new text begin [521A.07] ACCESS BY TRUSTEE TO DIGITAL ASSET.
new text end

new text begin (a) Subject to section 521A.08, paragraph (b), and unless otherwise ordered by the
court or provided in a trust, a trustee that is an original account holder has the right to
access any digital asset held in trust, including any catalog of electronic communications
of the trustee and the content of an electronic communication.
new text end

new text begin (b) Subject to section 521A.08, paragraph (b), and unless otherwise ordered by the
court or provided in a trust, a trustee that is not an original account holder has the right
to access:
new text end

new text begin (1) the content of an electronic communication that the custodian is permitted to
disclose under the Electronic Communications Privacy Act, United States Code, title
18, section 2702(b), as amended;
new text end

new text begin (2) any catalog of electronic communications sent or received by the original or
any successor account holder; and
new text end

new text begin (3) any other digital asset in which the original or any successor account holder has
a right or interest.
new text end

Sec. 8.

new text begin [521A.08] FIDUCIARY AUTHORITY.
new text end

new text begin (a) A fiduciary that is an account holder or has the right under this chapter to access
a digital asset of an account holder:
new text end

new text begin (1) subject to the terms-of-service agreement, copyright law, and other applicable
law, may take any action concerning the asset to the extent of the account holder's
authority and the fiduciary's power under the law of this state other than this chapter;
new text end

new text begin (2) has, for the purpose of applicable electronic privacy laws, the lawful consent of
the account holder for the custodian to divulge the content of an electronic communication
to the fiduciary; and
new text end

new text begin (3) is, for the purpose of applicable computer fraud and unauthorized computer
access laws, including section 609.891, an authorized user.
new text end

new text begin (b) Unless an account holder, after the effective date of this act, agrees to a provision
in a terms-of-service agreement that limits a fiduciary's access to a digital asset of the
account holder by an affirmative act separate from the account holder's assent to other
provisions of the agreement:
new text end

new text begin (1) the provision is void as against the strong public policy of this state; and
new text end

new text begin (2) the fiduciary's access under this chapter to a digital asset does not violate the
terms-of-service agreement even if the agreement requires notice of a change in the
account holder's status.
new text end

new text begin (c) A choice of law provision in a terms-of-service agreement is unenforceable
against a fiduciary acting under this chapter to the extent the provision designates law
that enforces a limitation on a fiduciary's access to a digital asset, and the limitation is
void under paragraph (b).
new text end

new text begin (d) As to tangible personal property capable of receiving, storing, processing, or
sending a digital asset, a fiduciary with authority over the property of a decedent, protected
person, principal, or settlor:
new text end

new text begin (1) has the right to access the property and any digital asset stored in it; and
new text end

new text begin (2) is an authorized user for purposes of any applicable computer fraud and
unauthorized computer access laws, including section 609.891.
new text end

Sec. 9.

new text begin [521A.09] COMPLIANCE.
new text end

new text begin (a) If a fiduciary with a right under this chapter to access a digital asset of an account
holder complies with paragraph (b), the custodian shall comply with the fiduciary's
request in a record for:
new text end

new text begin (1) access to the asset;
new text end

new text begin (2) control of the asset; and
new text end

new text begin (3) a copy of the asset to the extent permitted by copyright law.
new text end

new text begin (b) If a request under paragraph (a) is made by:
new text end

new text begin (1) a personal representative with the right of access under section 521A.04, the
request must be accompanied by a certified copy of the letter of appointment of the
representative, court order, or Affidavit of Collection of Personal Property executed
pursuant to section 524.3-1201;
new text end

new text begin (2) a conservator with the right of access under section 521A.05, the request must be
accompanied by a certified copy of the court order that gives the conservator authority
over the digital asset;
new text end

new text begin (3) an agent with the right of access under section 521A.06, the request must be
accompanied by an original or a copy of the power of attorney that authorizes the agent to
exercise authority over the digital asset and a certification of the agent, under penalty of
perjury, that the power of attorney is in effect; and
new text end

new text begin (4) a trustee with the right of access under section 521A.07, the request must be
accompanied by a certified copy of the trust instrument, or a certification of the trust under
section 501B.56, that authorizes the trustee to exercise authority over the digital asset.
new text end

new text begin (c) A custodian shall comply with a request made under paragraph (a) not later than
60 days after receipt. If the custodian fails to comply, the fiduciary may apply to the
court for an order directing compliance.
new text end

new text begin (d) Instead of furnishing a copy of the trust instrument under paragraph (b), clause
(4), the trustee may provide a certification of trust. The certification:
new text end

new text begin (1) must contain the following information:
new text end

new text begin (i) documentation that the trust exists and the date the trust instrument was executed;
new text end

new text begin (ii) the identity of the settlor;
new text end

new text begin (iii) the identity and address of the trustee;
new text end

new text begin (iv) documentation that there is nothing inconsistent in the trust with respect to the
trustee's powers over digital assets;
new text end

new text begin (v) whether the trust is revocable and the identity of any person holding a power
to revoke the trust;
new text end

new text begin (vi) whether a cotrustee has authority to sign or otherwise authenticate; and
new text end

new text begin (vii) whether all or fewer than all cotrustees are required to exercise powers of
the trustee;
new text end

new text begin (2) must be signed or otherwise authenticated by a trustee;
new text end

new text begin (3) must state that the trust has not been revoked, modified, or amended in a
manner that would cause the representations contained in the certification of trust to be
incorrect; and
new text end

new text begin (4) need not contain the dispositive terms of the trust.
new text end

new text begin (e) A custodian that receives a certification under paragraph (d) may require
the trustee to provide copies of excerpts from the original trust instrument and later
amendments designating the trustee and conferring on the trustee the power to act in
the pending transaction.
new text end

new text begin (f) A custodian that acts in reliance on a certification under paragraph (d) without
knowledge that the representations contained in it are incorrect is not liable to any person for
so acting and may assume without inquiry the existence of facts stated in the certification.
new text end

new text begin (g) A person that in good faith enters into a transaction in reliance on a certification
under paragraph (d) may enforce the transaction against the trust property as if the
representations contained in the certification were correct.
new text end

new text begin (h) A person that demands the trust instrument in addition to a certification under
paragraph (d) or excerpts under paragraph (e) is liable for damages, including attorney fees,
if the court determines that the person did not act in good faith in demanding the instrument.
new text end

new text begin (i) This section does not limit the right of a person to obtain a copy of a trust
instrument in a judicial proceeding concerning the trust.
new text end

Sec. 10.

new text begin [521A.10] CUSTODIAN IMMUNITY.
new text end

new text begin 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.
new text end

Sec. 11.

new text begin [521A.11] UNIFORMITY OF APPLICATION AND CONSTRUCTION.
new text end

new text begin In applying and construing this chapter, consideration must be given to the need to
promote uniformity of the law with respect to its subject matter among states that enact it.
new text end

Sec. 12.

new text begin [521A.12] RELATION TO ELECTRONIC SIGNATURES IN GLOBAL
AND NATIONAL COMMERCE ACT.
new text end

new text begin This chapter modifies, limits, or supersedes the Electronic Signatures in Global and
National Commerce Act, United States Code, title 15, section 7001 et seq., but does not
modify, limit, or supersede section 101(c) of that act, United States Code, title 15, section
7001(c), or authorize electronic delivery of any of the notices described in section 103(b)
of that act, United States Code, title 15, section 7003(b).
new text end

Sec. 13.

new text begin [521A.13] SEVERABILITY.
new text end

new text begin 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
that can be given effect without the invalid provision or application and, to this end, the
provisions of this chapter are severable.
new text end

Sec. 14. new text begin EFFECTIVE DATE.
new text end

new text begin This act is effective the day following final enactment.
new text end