Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 13 First Substitute (2017GS)

Sponsor

Rep. Snow, V. L.

Final action

Governor Signed 3/15/2017

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• defines terms;
• specifies who has access to the digital assets of an incapacitated or deceased person;
• sets out responsibilities for agents and fiduciaries with access to a person's digital assets; and
• provides for the responsibilities of the custodian of a digital asset upon request of an agent or fiduciary.

Every vote on this bill

Bill text

UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS
ACT
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: V. Lowry Snow
Senate Sponsor: 
Lyle W. Hillyard
LONG TITLE
Committee Note:
The Judiciary Interim Committee recommended this bill.
General Description:
This bill creates a new chapter within the Utah Uniform Probate Code addressing
access to digital assets when a person is incapacitated.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ specifies who has access to the digital assets of an incapacitated or deceased person;
▸ sets out responsibilities for agents and fiduciaries with access to a person's digital
assets; and
▸ provides for the responsibilities of the custodian of a digital asset upon request of an
agent or fiduciary.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
ENACTS:
75-10-101
, Utah Code Annotated 1953
75-10-102
, Utah Code Annotated 1953
75-10-103
, Utah Code Annotated 1953
75-10-104
, Utah Code Annotated 1953
75-10-105
, Utah Code Annotated 1953
75-10-106
, Utah Code Annotated 1953
75-10-107
, Utah Code Annotated 1953
75-10-108
, Utah Code Annotated 1953
75-10-109
, Utah Code Annotated 1953
75-10-110
, Utah Code Annotated 1953
75-10-111
, Utah Code Annotated 1953
75-10-112
, Utah Code Annotated 1953
75-10-113
, Utah Code Annotated 1953
75-10-114
, Utah Code Annotated 1953
75-10-115
, Utah Code Annotated 1953
75-10-116
, Utah Code Annotated 1953
75-10-117
, Utah Code Annotated 1953
75-10-118
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
75-10-101
 is enacted to read:
CHAPTER 10. UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT
 75-10-101.
Title.
This chapter may be cited as the "Uniform Fiduciary Access to Digital Assets Act."
Section 2. Section 
75-10-102
 is enacted to read:
 75-10-102.
Definitions.
As used in this chapter:
(1) "Account" means an arrangement under a terms of service agreement in which a
custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides
goods or services to the user.
(2) "Agent" means an attorney in fact granted authority under a durable or nondurable
power of attorney.
(3) "Carries" means engages in the transmission of an electronic communication.
(4) "Catalogue of electronic communications" means information that identifies each
person with which a user has had an electronic communication, the time and date of the
communication, and the electronic address of the person.
(5) "Conservator" means a person appointed by a court to 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 that:
(a) has been sent or received by a user;
(b) 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
(c) is not readily accessible to the public.
(7) "Court" means the district 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 same meaning as the definition in 18 U.S.C.
Sec. 2510(12).
(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,
conservator, agent, or trustee.
(15) "Information" means data, text, images, videos, sounds, codes, computer
programs, software, databases, or the like.
(16) "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.
(17) "Person" means an individual, estate, business or nonprofit entity, public
corporation, government or governmental subdivision, agency, instrumentality, or other legal
entity.
(18) "Personal representative" means an executor, administrator, special administrator,
or person that performs substantially the same function under the law of this state other than
this chapter.
(19) "Power of attorney" means a record that grants an agent authority to act in the
place of a principal.
(20) "Principal" means an individual who grants authority to an agent in a power of
attorney.
(21) "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.
(22) "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.
(23) "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. Sec. 2510(14).
(24) "Terms of service agreement" means an agreement that controls the relationship
between a user and a custodian.
(25) "Trustee" means a fiduciary with legal title to property pursuant to an agreement
or declaration that creates a beneficial interest in another. The term includes a successor
trustee.
(26) "User" means a person that has an account with a custodian.
(27) "Will" includes a codicil, a testamentary instrument that only appoints an
executor, and an instrument that revokes or revises a testamentary instrument.
Section 3. Section 
75-10-103
 is enacted to read:
 75-10-103.
Applicability.
(1) This chapter applies to:
(a) a fiduciary or agent acting under a will or power of attorney executed before, on, or
after May 9, 2017;
(b) a personal representative acting for a decedent who died before, on, or after May 9,
2017;
(c) a conservatorship proceeding commenced before, on, or after May 9, 2017; and
(d) a trustee acting under a trust created before, on, or after May 9, 2017.
(2) 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.
(3) 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.
Section 4. Section 
75-10-104
 is enacted to read:
 75-10-104.
User direction for disclosure of digital assets.
(1) A user may use an online tool to direct the custodian to disclose or not to disclose
to a designated recipient 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.
(2) If a user has not used an online tool to give direction under Subsection (1) 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.
(3) A user's direction under Subsection (1) or (2) 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.
Section 5. Section 
75-10-105
 is enacted to read:
 75-10-105.
Terms of service agreement.
(1) 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.
(2) 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.
(3) 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 
75-10-104
.
Section 6. Section 
75-10-106
 is enacted to read:
 75-10-106.
Procedure for disclosing digital assets.
(1) When disclosing digital assets of a user under this chapter, the custodian may at the
custodian's sole discretion:
(a) grant a fiduciary or designated recipient full access to the user's account;
(b) 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
(c) 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.
(2) A custodian may assess a reasonable administrative charge for the cost of
disclosing digital assets under this chapter.
(3) A custodian need not disclose under this chapter a digital asset deleted by a user.
(4) 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:
(a) a subset limited by date of the user's digital assets;
(b) all of the user's digital assets to the fiduciary or designated recipient;
(c) none of the user's digital assets; or
(d) all of the user's digital assets to the court for review in camera.
Section 7. Section 
75-10-107
 is enacted to read:
 75-10-107.
Disclosure of content of electronic communications of deceased user.
If a deceased user consented to 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:
(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 finding by the court that:
(i) the user had a specific account with the custodian, identifiable by the information
specified in Subsection (5)(a);
(ii) disclosure of the content of electronic communications of the user would not
violate 18 U.S.C. Sec. 2701 et seq., 47 U.S.C. Sec. 222, or other applicable law;
(iii) unless the user provided direction using an online tool, the user consented to
disclosure of the content of electronic communications; or
(iv) disclosure of the content of electronic communications of the user is reasonably
necessary for administration of the estate.
Section 8. Section 
75-10-108
 is enacted to read:
 75-10-108.
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, a small estate
affidavit, or court order; and
(4) 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;
(c) an affidavit stating that disclosure of the user's digital assets is reasonably necessary
for administration of the estate; or
(d) a finding by the court that:
(i) the user had a specific account with the custodian, identifiable by the information
specified in Subsection (4)(a); or
(ii) disclosure of the user's digital assets is reasonably necessary for administration of
the estate.
Section 9. Section 
75-10-109
 is enacted to read:
 75-10-109.
Disclosure of content of electronic communications of principal.
To the extent a power of attorney expressly grants an agent authority over the content of
electronic communications sent or received by the principal and unless directed otherwise by
the principal or the court, a custodian shall disclose to the agent the content if the agent gives
the custodian:
(1) a written request for disclosure in physical or electronic form;
(2) an original or copy of the power of attorney expressly granting the agent authority
over the content of electronic communications of the principal;
(3) a certification by the agent, under penalty of perjury, that the power of attorney is in
effect; and
(4) if requested by the custodian:
(a) a number, username, address, or other unique subscriber or account identifier
assigned by the custodian to identify the principal's account; or
(b) evidence linking the account to the principal.
Section 10. Section 
75-10-110
 is enacted to read:
 75-10-110.
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:
(a) a number, username, address, or other unique subscriber or account identifier
assigned by the custodian to identify the principal's account; or
(b) evidence linking the account to the principal.
Section 11. Section 
75-10-111
 is enacted to read:
 75-10-111.
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.
Section 12. Section 
75-10-112
 is enacted to read:
 75-10-112.
Disclosure of contents of electronic communications held in trust when
trustee 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 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 or a certification of the trust under Section
75-7-1013
 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:
(a) a number, username, address, or other unique subscriber or account identifier
assigned by the custodian to identify the trust's account; or
(b) evidence linking the account to the trust.
Section 13. Section 
75-10-113
 is enacted to read:
 75-10-113.
Disclosure of other digital assets held in trust when trustee 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 or a certification of the trust under Section
75-7-1013
;
(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:
(a) a number, username, address, or other unique subscriber or account identifier
assigned by the custodian to identify the trust's account; or
(b) evidence linking the account to the trust.
Section 14. Section 
75-10-114
 is enacted to read:
 75-10-114.
Disclosure of digital assets to conservator of protected person.
(1) After an opportunity for a hearing under Chapter 5b, Uniform Adult Guardianship
and Protective Proceedings Jurisdiction Act, the court may grant a conservator access to the
digital assets of a protected person.
(2) Unless otherwise ordered by the court or directed by the user, a custodian shall
disclose to a 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 conservator gives the custodian:
(a) a written request for disclosure in physical or electronic form;
(b) a certified copy of the court order that gives the conservator authority over the
digital assets of the protected person; and
(c) 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.
(3) 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.
Section 15. Section 
75-10-115
 is enacted to read:
 75-10-115.
Fiduciary duty and authority.
(1) The legal duties imposed on a fiduciary charged with managing tangible property
apply to the management of digital assets, including:
(a) the duty of care;
(b) the duty of loyalty; and
(c) the duty of confidentiality.
(2) A fiduciary's or designated recipient's authority with respect to a digital asset of a
user:
(a) except as otherwise provided in Section 
75-10-104
, is subject to the applicable
terms of service;
(b) is subject to other applicable law, including copyright law;
(c) in the case of a fiduciary, is limited by the scope of the fiduciary's duties; and
(d) may not be used to impersonate the user.
(3) 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.
(4) 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.
(5) A fiduciary with authority over the tangible, personal property of a decedent,
protected person, principal, or settlor:
(a) has the right to access the property and any digital asset stored in it; and
(b) is an authorized user for the purpose of computer fraud and unauthorized computer
access laws.
(6) 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.
(7) A fiduciary of a user may request a custodian to terminate the user's account. A
request for termination shall be in writing, in either physical or electronic form, and
accompanied by:
(a) if the user is deceased, a certified copy of the death certificate of the user;
(b) a certified copy of the letter of appointment of the representative, a small estate
affidavit, or court order, power of attorney, or trust giving the fiduciary authority over the
account; and
(c) 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 (7)(c)(i).
Section 16. Section 
75-10-116
 is enacted to read:
 75-10-116.
Custodian compliance and immunity.
(1) Not later than 60 days after receipt of the information required under Sections
75-10-107
 through 
75-10-115
, 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.
(2) An order under Subsection (1) directing compliance shall contain a finding that
compliance is not in violation of 18 U.S.C. Sec. 2702.
(3) A custodian may notify the user that a request for disclosure or to terminate an
account was made under this chapter.
(4) 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.
(5) 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 that:
(a) specifies that an account belongs to the protected person or principal;
(b) specifies that there is sufficient consent from the protected person or principal to
support the requested disclosure; and
(c) contains a finding required by law other than this chapter.
(6) 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.
Section 17. Section 
75-10-117
 is enacted to read:
 75-10-117.
Uniformity of application and construction.
In applying and construing this uniform act, consideration shall be given to the need to
promote uniformity of the law with respect to its subject matter among states that enact it.
Section 18. Section 
75-10-118
 is enacted to read:
 75-10-118.
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. Sec. 7001 et seq., but does not modify, limit, or supersede
Section 101(c) of that act or 15 U.S.C. Sec. 7001(c), or authorize electronic delivery of any of
the notices described in Section 103(b) of that act or 15 U.S.C. Sec. 7003(b).
Legislative Review Note
Office of Legislative Research and General Counsel