HF 200

1st Engrossment - 89th Legislature (2015 - 2016) Posted on 05/18/2016 09:02am

A bill for an act
relating to civil law; enacting the Revised 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 "Revised 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. new text end

new text begin "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.
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 an electronic
communication.
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 a user 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 a limited conservator, or
unlimited under 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 a user;
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 a user.
new text end

new text begin Subd. 10. new text end

new text begin Designated recipient. new text end

new text begin "Designated recipient" means a person chosen by
a user using an online tool to administer digital assets of the user.
new text end

new text begin Subd. 11. new text end

new text begin Digital asset. new text end

new text begin "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.
new text end

new text begin Subd. 12. 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. 13. 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. 14. new text end

new text begin Electronic communication service. new text end

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

new text begin Subd. 15. 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. 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 Online tool. new text end

new text begin "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.
new text end

new text begin Subd. 18. 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, or instrumentality,
or other legal entity.
new text end

new text begin Subd. 19. 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. 20. 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. 21. 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. 22. 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. 23. 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. 24. new text end

new text begin Remote computing service. new text end

new text begin "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 United States
Code, title 18, section 2510(14), as amended.
new text end

new text begin Subd. 25. 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 a user and a custodian.
new text end

new text begin Subd. 26. new text end

new text begin Trustee. new text end

new text begin "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.
new text end

new text begin Subd. 27. new text end

new text begin User. new text end

new text begin "User" means a person that has an account with a custodian.
new text end

new text begin Subd. 28. 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 acting under a will or power of attorney;
new text end

new text begin (2) a personal representative acting for a decedent;
new text end

new text begin (3) a conservatorship proceeding; and
new text end

new text begin (4) a trustee acting under a trust.
new text end

new text begin (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.
new text end

new text begin (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.
new text end

Sec. 4.

new text begin [521A.04] USER DIRECTION FOR DISCLOSURE OF DIGITAL
ASSETS.
new text end

new text begin (a) A user may use an online tool to direct the custodian to disclose to a designated
recipient or not to 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.
new text end

new text begin (b) If a user has not used an online tool to give direction under paragraph (a) 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.
new text end

new text begin (c) A user's direction under paragraph (a) or (b) 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.
new text end

Sec. 5.

new text begin [521A.05] TERMS-OF-SERVICE AGREEMENT.
new text end

new text begin (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.
new text end

new text begin (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.
new text end

new text begin (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 section 521A.04.
new text end

Sec. 6.

new text begin [521A.06] PROCEDURE FOR DISCLOSING DIGITAL ASSETS.
new text end

new text begin (a) When disclosing digital assets of a user under this chapter, the custodian may, at
its sole discretion:
new text end

new text begin (1) grant a fiduciary or designated recipient full access to the user's account;
new text end

new text begin (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
new text end

new text begin (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.
new text end

new text begin (b) A custodian may assess a reasonable administrative charge for the cost of
disclosing digital assets under this chapter.
new text end

new text begin (c) A custodian need not disclose under this chapter a digital asset deleted by a user.
new text end

new text begin (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:
new text end

new text begin (1) a subset limited by date of the user's digital assets;
new text end

new text begin (2) all of the user's digital assets to the fiduciary or designated recipient;
new text end

new text begin (3) none of the user's digital assets; or
new text end

new text begin (4) all of the user's digital assets to the court for review in chambers.
new text end

Sec. 7.

new text begin [521A.07] DISCLOSURE OF CONTENT OF ELECTRONIC
COMMUNICATIONS OF DECEASED USER.
new text end

new text begin If a deceased user consented or a court directs disclosure of the content of an
electronic communication 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:
new text end

new text begin (1) a written request for disclosure in physical or electronic form;
new text end

new text begin (2) a certified copy of the death certificate of the user;
new text end

new text begin (3) a certified copy of the letter of appointment of the representative, court order, or
Affidavit of Collection of Personal Property executed under section 524.3-1201;
new text end

new text begin (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
new text end

new text begin (5) if requested by the custodian:
new text end

new text begin (i) a number, username, address, or other unique subscriber or account identifier
assigned by the custodian to identify the user's account;
new text end

new text begin (ii) evidence linking the account to the user; or
new text end

new text begin (iii) a finding by the court that:
new text end

new text begin (A) the user had a specific account with the custodian, identifiable by the information
specified in item (i);
new text end

new text begin (B) disclosure of the content of electronic communications of the user would not
violate United States Code, title 18, section 2701 et seq., as amended; United States Code,
title 47, section 222, as amended; or other applicable law;
new text end

new text begin (C) unless the user provided direction using an online tool, the user consented to
disclosure of the content of electronic communications; or
new text end

new text begin (D) disclosure of the content of electronic communications of the user is reasonably
necessary for administration of the estate.
new text end

Sec. 8.

new text begin [521A.08] DISCLOSURE OF OTHER DIGITAL ASSETS OF
DECEASED USER.
new text end

new text begin 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
catalog 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:
new text end

new text begin (1) a written request for disclosure in physical or electronic form;
new text end

new text begin (2) a certified copy of the death certificate of the user;
new text end

new text begin (3) a certified copy of the letter of appointment of the representative, court order, or
Affidavit of Collection of Personal Property executed under section 524.3-1201; and
new text end

new text begin (4) if requested by the custodian:
new text end

new text begin (i) a number, username, address, or other unique subscriber or account identifier
assigned by the custodian to identify the user's account;
new text end

new text begin (ii) evidence linking the account to the user;
new text end

new text begin (iii) an affidavit stating that disclosure of the user's digital assets is reasonably
necessary for administration of the estate; or
new text end

new text begin (iv) a finding by the court that:
new text end

new text begin (A) the user had a specific account with the custodian, identifiable by the information
specified in item (i); or
new text end

new text begin (B) disclosure of the user's digital assets is reasonably necessary for administration
of the estate.
new text end

Sec. 9.

new text begin [521A.09] DISCLOSURE OF CONTENT OF ELECTRONIC
COMMUNICATIONS OF PRINCIPAL.
new text end

new text begin 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:
new text end

new text begin (1) a written request for disclosure in physical or electronic form;
new text end

new text begin (2) an original or copy of the power of attorney expressly granting the agent
authority over the content of electronic communications of the principal;
new text end

new text begin (3) a certification by the agent, under penalty of perjury, that the power of attorney is
in effect; and
new text end

new text begin (4) if requested by the custodian:
new text end

new text begin (i) a number, username, address, or other unique subscriber or account identifier
assigned by the custodian to identify the principal's account; or
new text end

new text begin (ii) evidence linking the account to the principal.
new text end

Sec. 10.

new text begin [521A.10] DISCLOSURE OF OTHER DIGITAL ASSETS OF
PRINCIPAL.
new text end

new text begin 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 catalog 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:
new text end

new text begin (1) a written request for disclosure in physical or electronic form;
new text end

new text begin (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;
new text end

new text begin (3) a certification by the agent, under penalty of perjury, that the power of attorney is
in effect; and
new text end

new text begin (4) if requested by the custodian:
new text end

new text begin (i) a number, username, address, or other unique subscriber or account identifier
assigned by the custodian to identify the principal's account; or
new text end

new text begin (ii) evidence linking the account to the principal.
new text end

Sec. 11.

new text begin [521A.11] DISCLOSURE OF DIGITAL ASSETS HELD IN TRUST
WHEN TRUSTEE IS ORIGINAL USER.
new text end

new text begin 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 catalog of electronic communications of the trustee and the
content of electronic communications.
new text end

Sec. 12.

new text begin [521A.12] DISCLOSURE OF CONTENT OF ELECTRONIC
COMMUNICATIONS HELD IN TRUST WHEN TRUSTEE NOT ORIGINAL
USER.
new text end

new text begin 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 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:
new text end

new text begin (1) a written request for disclosure in physical or electronic form;
new text end

new text begin (2) a certified copy of the trust instrument or a certification of the trust under section
501C.1013 that includes consent to disclosure of the content of electronic communications
to the trustee;
new text end

new text begin (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
new text end

new text begin (4) if requested by the custodian:
new text end

new text begin (i) a number, username, address, or other unique subscriber or account identifier
assigned by the custodian to identify the trust's account; or
new text end

new text begin (ii) evidence linking the account to the trust.
new text end

Sec. 13.

new text begin [521A.13] DISCLOSURE OF OTHER DIGITAL ASSETS HELD IN
TRUST WHEN TRUSTEE NOT ORIGINAL USER.
new text end

new text begin 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 catalog 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:
new text end

new text begin (1) a written request for disclosure in physical or electronic form;
new text end

new text begin (2) a certified copy of the trust instrument or a certification of the trust under section
501C.1013;
new text end

new text begin (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
new text end

new text begin (4) if requested by the custodian:
new text end

new text begin (i) a number, username, address, or other unique subscriber or account identifier
assigned by the custodian to identify the trust's account; or
new text end

new text begin (ii) evidence linking the account to the trust.
new text end

Sec. 14.

new text begin [521A.14] DISCLOSURE OF DIGITAL ASSETS TO CONSERVATOR
OF PROTECTED PERSON.
new text end

new text begin (a) After an opportunity for a hearing under chapter 524, the court may grant a
conservator access to the digital assets of a protected person.
new text end

new text begin (b) Unless otherwise ordered by the court or directed by the user, a custodian shall
disclose to a conservator the catalog 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 conservator gives the custodian:
new text end

new text begin (1) a written request for disclosure in physical or electronic form;
new text end

new text begin (2) a certified copy of the court order that gives the conservator authority over the
digital assets of the protected person; and
new text end

new text begin (3) if requested by the custodian:
new text end

new text begin (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
new text end

new text begin (ii) evidence linking the account to the protected person.
new text end

new text begin (c) A 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 conservator
authority over the protected person's property.
new text end

Sec. 15.

new text begin [521A.15] FIDUCIARY DUTY AND AUTHORITY.
new text end

new text begin (a) The legal duties imposed on a fiduciary charged with managing tangible property
apply to the management of digital assets, including:
new text end

new text begin (1) the duty of care;
new text end

new text begin (2) the duty of loyalty; and
new text end

new text begin (3) the duty of confidentiality.
new text end

new text begin (b) A fiduciary's or designated recipient's authority with respect to a digital asset
of a user:
new text end

new text begin (1) except as otherwise provided in section 521A.04, is subject to the applicable
terms of service;
new text end

new text begin (2) is subject to other applicable law, including copyright law;
new text end

new text begin (3) in the case of a fiduciary, is limited by the scope of the fiduciary's duties; and
new text end

new text begin (4) may not be used to impersonate the user.
new text end

new text begin (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.
new text end

new text begin (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 section
609.891.
new text end

new text begin (e) A fiduciary with authority over the tangible personal 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 the purpose of computer fraud and unauthorized
computer access laws, including section 609.891.
new text end

new text begin (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.
new text end

new text begin (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:
new text end

new text begin (1) if the user is deceased, a certified copy of the death certificate of the user;
new text end

new text begin (2) a certified copy of the letter of appointment of the representative or a small
estate affidavit or court order, court order, power of attorney, or trust giving the fiduciary
authority over the account; and
new text end

new text begin (3) if requested by the custodian:
new text end

new text begin (i) a number, username, address, or other unique subscriber or account identifier
assigned by the custodian to identify the user's account;
new text end

new text begin (ii) evidence linking the account to the user; or
new text end

new text begin (iii) a finding by the court that the user had a specific account with the custodian,
identifiable by the information specified in item (i).
new text end

Sec. 16.

new text begin [521A.16] CUSTODIAN COMPLIANCE AND IMMUNITY.
new text end

new text begin (a) Not later than 60 days after receipt of the information required under sections
521A.07 to 521A.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.
new text end

new text begin (b) An order under paragraph (a) directing compliance must contain a finding that
compliance is not in violation of United States Code, title 18, section 2702, as amended.
new text end

new text begin (c) A custodian may notify the user that a request for disclosure or to terminate
an account was made under this chapter.
new text end

new text begin (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.
new text end

new text begin (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:
new text end

new text begin (1) specifies that an account belongs to the protected person or principal;
new text end

new text begin (2) specifies that there is sufficient consent from the protected person or principal
to support the requested disclosure; and
new text end

new text begin (3) contains a finding required by law other than this chapter.
new text end

new text begin (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.
new text end

Sec. 17.

new text begin [521A.17] 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. 18.

new text begin [521A.18] 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. 19.

new text begin [521A.19] 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
which 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. 20. new text begin EFFECTIVE DATE.
new text end

new text begin Sections 1 to 19 apply to fiduciaries acting under a governing instrument executed
before, on, or after August 1, 2016.
new text end