PRINTER'S NO. 831
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
759
Session of
2015
INTRODUCED BY KITCHEN, BREWSTER, FONTANA, SCHWANK, COSTA,
HUGHES, YUDICHAK, RAFFERTY, WOZNIAK AND WILLIAMS, MAY 1, 2015
REFERRED TO JUDICIARY, MAY 1, 2015
AN ACT
Amending Title 20 (Decedents, Estates and Fiduciaries) of the
Pennsylvania Consolidated Statutes, enabling uniform
fiduciary access to digital assets; and providing for
authority, compliance and immunity.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 20 of the Pennsylvania Consolidated
Statutes is amended by adding a chapter to read:
CHAPTER 11
UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT
Sec.
1101. Short title of chapter.
1102. Definitions.
1103. Applicability.
1104. Access by personal representative to digital asset of
decedent.
1105. Access by conservator to digital asset of protected
person.
1106. Access by agent to digital asset of principal.
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1107. Access by trustee to digital asset.
1108. Fiduciary authority.
1109. Compliance.
1110. Custodian immunity.
1111. Uniformity of application and construction.
1112. Relation to Electronic Signatures in Global and National
Commerce Act.
§ 1101. Short title of chapter.
This chapter shall be known and may be cited as the Uniform
Fiduciary Access to Digital Assets Act.
§ 1102. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Account holder." A person that has entered into a terms of
service agreement with a custodian or a fiduciary for the
person.
"Agent." An attorney-in-fact granted authority under a
durable or nondurable power of attorney.
"Carries." Engages in the transmission of electronic
communications.
"Catalog of electronic communications." Information which
identifies:
(1) each person with which an account holder has had an
electronic communication;
(2) the time and date of the communication; and
(3) the electronic address of the person.
"Conservator." A person appointed by a court to manage the
estate of a living individual. The term includes a limited
conservator.
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"Content of an electronic communication." Information
concerning the substance or meaning of the communication which:
(1) has been sent or received by an account holder;
(2) is:
(i) in electronic storage by a custodian providing
an electronic communication service to the public; or
(ii) carried or maintained by a custodian providing
a remote computing service to the public; and
(3) is not readily accessible to the public.
"Custodian." A person that carries, maintains, processes,
receives or stores a digital asset of an account holder.
"Digital asset." A record which is electronic. The term does
not include an underlying asset or liability unless the asset or
liability is itself a record which is electronic.
"Electronic." Relating to technology having electrical,
digital, magnetic, wireless, optical, electromagnetic or similar
capabilities.
"Electronic communication." As defined in 18 U.S.C. §
2510(12) (relating to definitions).
"Electronic communication service." A custodian that
provides to an account holder the ability to send or receive an
electronic communication.
"Electronic communications system." As defined in 18 U.S.C.
§ 2510(14).
"Fiduciary." Includes an original, an additional and a
successor fiduciary.
"Governing instrument." Any will, trust, instrument creating
a power of attorney or other dispositive or nominative
instrument.
"Information." Data, text, images, videos, sounds, codes,
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computer programs, software, databases or the like.
"Person." Any individual, estate, business or nonprofit
entity, public corporation, government or governmental
subdivision, agency, instrumentality or other legal entity.
"Personal representative." Includes a person that performs
substantially the same function as a personal representative
under the laws of this Commonwealth other than this chapter.
"Power of attorney." A record which grants an agent
authority to act in the place of a principal.
"Principal." An individual who grants authority to an agent
in a power of attorney.
"Protected person." 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.
"Record." Information which is inscribed on a tangible
medium or which is stored in an electronic or other medium and
is retrievable in perceivable form.
"Remote computing service." A custodian that provides to an
account holder computer processing services or the storage of
digital assets by means of an electronic communications system.
"State." A state of the United States, the District of
Columbia, Puerto Rico, the Virgin Islands or any territory or
insular possession subject to the jurisdiction of the United
States.
"Terms of service agreement." An agreement which controls
the relationship between an account holder and a custodian.
"Trustee." A fiduciary with legal title to property pursuant
to an agreement or declaration which creates a beneficial
interest in another. The term includes a successor trustee.
"Will." Includes a testamentary instrument which only
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appoints an executor.
§ 1103. Applicability.
(a) Within scope.--This chapter applies to:
(1) a fiduciary or agent acting under a will or power of
attorney executed before, on or after the effective date of
this chapter;
(2) a personal representative acting for a decedent who
died before, on or after the effective date of this chapter;
(3) a conservatorship proceeding, whether pending in a
court or 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) Outside of scope.--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.
§ 1104. Access by personal representative to digital asset of
decedent.
Subject to section 1108(b) (relating to fiduciary authority)
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:
(1) the content of an electronic communication that the
custodian is permitted to disclose under 18 U.S.C. § 2702(b)
(relating to voluntary disclosure of customer communications
or records);
(2) any catalog of electronic communications sent or
received by the decedent; and
(3) any other digital asset in which, at death, the
decedent had a right or interest.
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§ 1105. Access by conservator to digital asset of protected
person.
Subject to section 1108(b) (relating to fiduciary authority),
the court, after an opportunity for hearing under Chapter 59
(relating to uniform adult guardianship and protective
proceedings jurisdiction), may grant a conservator the right to
access:
(1) the content of an electronic communication which the
custodian is permitted to disclose under 18 U.S.C. § 2702(b)
(relating to voluntary disclosure of customer communications
or records);
(2) any catalog of electronic communications sent or
received by the protected person; and
(3) any other digital asset in which the protected
person has a right or interest.
§ 1106. Access by agent to digital asset of principal.
(a) Electronic communications.--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 1108(b) (relating to fiduciary authority), the agent has
the right to access the content of an electronic communication
which the custodian is permitted to disclose under 18 U.S.C. §
2702(b) (relating to voluntary disclosure of customer
communications or records).
(b) Catalogs and digital assets.--Subject to section 1108(b)
and unless otherwise ordered by the court or provided by a power
of attorney, an agent has the right to access:
(1) any catalog of electronic communications sent or
received by the principal; and
(2) any other digital asset in which the principal has a
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right or interest.
§ 1107. Access by trustee to digital asset.
(a) Original account holder.--Subject to section 1108(b)
(relating to fiduciary authority) 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:
(1) the content of an electronic communication; and
(2) any catalog of electronic communications of the
trustee.
(b) Subsequent account holder.--Subject to section 1108(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:
(1) the content of an electronic communication that the
custodian is permitted to disclose under 18 U.S.C. § 2702(b)
(relating to voluntary disclosure of customer communications
or records);
(2) any catalog of electronic communications sent or
received by the original or any successor account holder; and
(3) any other digital asset in which the original or any
successor account holder has a right or interest.
§ 1108. Fiduciary authority.
(a) Action, consent and authorization.--All of the following
apply to a fiduciary that is an account holder or has the right
under this chapter to access a digital asset of an account
holder:
(1) Subject to the terms of service agreement, copyright
law and other applicable law, the fiduciary may take action
concerning the asset to the extent of the account holder's
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authority and the fiduciary's power under the laws of this
Commonwealth other than this chapter.
(2) The fiduciary 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.
(3) The fiduciary is, for the purpose of applicable
computer fraud and unauthorized computer access laws,
including 18 Pa.C.S. Ch. 57 (relating to wiretapping and
electronic surveillance), an authorized user.
(b) Void limitations.--Unless an account holder, after the
effective date of this chapter, agrees to a provision in a terms
of service agreement which 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:
(1) the provision is void as against the strong public
policy of the Commonwealth; and
(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.
(c) Choice of law.--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
which enforces a limitation on a fiduciary's access to a digital
asset, and the limitation is void under subsection (b).
(d) Tangible personal property.--As to tangible personal
property capable of receiving, storing, processing or sending a
digital asset, a fiduciary with authority over the property of a
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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 purposes of any applicable
computer fraud and unauthorized computer access laws,
including 18 Pa.C.S. Ch. 57.
§ 1109. Compliance.
(a) Duty of custodian.--If a fiduciary with a right under
this chapter to access a digital asset of an account holder
complies with subsection (b), the custodian shall comply with
the fiduciary's request in a record for:
(1) access to the asset;
(2) control of the asset; and
(3) a copy of the asset to the extent permitted by
copyright law.
(b) Requirements for fiduciary.--
(1) If a request under subsection (a) is made by a
personal representative with the right of access under
section 1104 (relating to access by personal representative
to digital asset of decedent), the request must be
accompanied by a certified copy of the letter of appointment
of the representative or a small estate affidavit or court
order.
(2) If a request under subsection (a) is made by a
conservator with the right of access under section 1105
(relating to access by conservator to digital asset of
protected person), the request must be accompanied by a
certified copy of the court order which gives the conservator
authority over the digital asset.
(3) If a request under subsection (a) is made by an
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agent with the right of access under section 1106 (relating
to access by agent to digital asset of principal), the
request must be accompanied by an original or a copy of the
power of attorney which 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.
(4) If a request under subsection (a) is made by a
trustee with the right of access under section 1107 (relating
to access by trustee to digital asset), the request must be
accompanied by:
(i) except as set forth in subsection (d), a
certified copy of the trust instrument, which authorizes
the trustee to exercise authority over the digital asset;
or
(ii) a certification under section 7790.3 (relating
to certification of trust – UTC 1013), which authorizes
the trustee to exercise authority over the digital asset.
(c) Time period.--
(1) A custodian shall comply with a request made under
subsection (a) not later than 60 days after receipt.
(2) If the custodian fails to comply, the fiduciary may
apply to the court for an order directing compliance.
(d) Certification of trust.--Instead of furnishing a copy of
the trust instrument under subsection (b)(4)(i), the trustee may
provide a certification of trust.
(1) The certification must contain all of the following
information:
(i) That the trust exists and the date the trust
instrument was executed.
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(ii) The identity of the settlor.
(iii) The identity and address of the trustee.
(iv) That there is nothing inconsistent in the trust
with respect to the trustee's powers over digital assets.
(v) Whether the trust is revocable and the identity
of any person holding a power to revoke the trust.
(vi) Whether a cotrustee has authority to sign or
otherwise authenticate.
(vii) Whether all or fewer than all cotrustees are
required to exercise powers of the trustee.
(2) The certification must be signed or otherwise
authenticated by a trustee.
(3) The certification must state that the trust has not
been revoked, modified or amended in a manner which would
cause the representations contained in the certification of
trust to be incorrect.
(4) The certification need not contain the dispositive
terms of the trust.
(e) Support for certification of trust.--A custodian that
receives a certification under subsection (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.
(f) Immunity.--A custodian that acts in reliance on a
certification under subsection (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.
(g) Enforcement.--A person that in good faith enters into a
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transaction in reliance on a certification under subsection (d)
may enforce the transaction against the trust property as if the
representations contained in the certification were correct.
(h) Liability for improper demand.--A person that demands
the trust instrument in addition to a certification under
subsection (d) or excerpts under subsection (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.
(i) Judicial access.--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.
§ 1110. Custodian immunity.
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.
§ 1111. 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 which enact it.
§ 1112. Relation to Electronic Signatures in Global and
National Commerce Act.
To the extent permitted by section 102 of the Electronic
Signatures in Global and National Commerce Act (Public Law 106-
229, 15 U.S.C. § 7002), this chapter may supersede provisions of
that act.
Section 2. This act shall take effect in 60 days.
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