Regular Session 2015-2016 Senate Bill 0518 P.N. 0483

PRINTER'S NO. 483

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

518

Session of

2015

INTRODUCED BY PILEGGI, BAKER, COSTA, RAFFERTY, FOLMER, GORDNER,

VULAKOVICH, HUGHES, SCHWANK AND TARTAGLIONE,

FEBRUARY 20, 2015

REFERRED TO JUDICIARY, FEBRUARY 20, 2015

AN ACT

Amending Title 20 (Decedents, Estates and Fiduciaries) of the

Pennsylvania Consolidated Statutes, in fiduciary access to

digital assets, providing for access by personal

representative to digital assets of decedent, for access by

conservator to digital assets of protected person, for

access by agent to digital assets of principal, for access by

trustee to digital assets, for fiduciary authority, for

compliance, for custodian immunity, for uniformity of

application and construction and for applicability.

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 39

FIDUCIARY ACCESS TO DIGITAL ASSETS

Sec.

3901. Definitions.

3902. Access by personal representative to digital assets of

decedent.

3903. Access by conservator to digital assets of protected

person.

3904. Access by agent to digital assets of principal.

3905. Access by trustee to digital assets.

3906. Fiduciary authority.

3907. Compliance.

3908. Custodian immunity.

3909. Uniformity of application and construction.

3910. Relation to Electronic Signatures in Global and National

Commerce Act.

3911. Applicability.

§ 3901. 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." Either of the following:

(1) a person that has entered into a terms-of-service

agreement with a custodian; or

(2) a fiduciary for a person described in paragraph (1).

"Agent." An attorney-in-fact granted authority under a

durable or nondurable power of attorney.

"Carries." Engaging in the transmission of electronic

communications.

"Catalog of electronic communications." 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.

"Conservator." A person appointed by a court to manage the

estate of a living individual. The term includes a limited

conservator.

"Content of an electronic communication." Information not

readily accessible to the public concerning the substance or

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meaning of an electronic communication.

"Custodian." A person that carries, maintains, processes,

receives or stores a digital asset of an account holder.

"Digital asset." 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.

"Electronic." Relating to technology having electrical,

digital, magnetic, wireless, optical, electromagnetic or similar

capabilities.

"Electronic communication." A digital asset stored by an

electronic communication service or carried or maintained by a

remote computing service. The term includes the catalog of

electronic communications and the content of an electronic

communication.

"Electronic communication service." A custodian that

provides to the public the ability to send or receive an

electronic communication.

"Fiduciary." A person that is an original, additional or

successor personal representative, conservator, agent or

trustee.

"Governing instrument." A will, trust or instrument

establishing a power of attorney or other dispositive or

nominative instrument.

"Information." Data, text, images, videos, sounds, codes,

computer programs, software, databases or the like.

"Person." An individual, estate, business or nonprofit

entity , public corporation, government or governmental

subdivision, agency or instrumentality or other legal entity.

"Personal representative." An executor, administrator,

special administrator or person that performs substantially the

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same function under the laws of this Commonwealth other than

this chapter.

"Power of attorney." A record that 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 that is inscribed on a tangible medium

or stored in an electronic or other medium and is retrievable in

perceivable form.

"Remote computing service." A custodian that provides to the

public computer processing services or the storage of digital

assets by means of an electronic communications system as

defined in 18 U.S.C. § 2510(14) (relating to definitions).

"Terms-of-service agreement." An agreement that controls the

relationship between an account holder and a custodian.

"Trustee." A fiduciary with legal title to an asset under an

agreement or declaration that establishes a beneficial interest

in others.

"Will." Includes a codicil, testamentary instrument that

only appoints an executor and instrument that revokes or revises

a testamentary instrument.

§ 3902. Access by personal representative to digital assets of

decedent.

Subject to section 3906(b) (relating to fiduciary authority)

and unless otherwise provided by the court or the will of a

decedent, a personal representative of the decedent may access:

(1) the content of an electronic communication sent or

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received by the decedent if the electronic communication

service or remote computing service is permitted to disclose

the content under 18 U.S.C. § 2702(b) (relating to voluntary

disclosure of customer communications or records);

(2) the catalog of electronic communications sent or

received by the decedent; and

(3) another digital asset in which the decedent at death

had a right or interest.

§ 3903. Access by conservator to digital assets of protected

person.

After an opportunity for hearing unde r Chapter 51 (relating

to minors) or Subchapter C of Chapter 55 (relating to

appointment of guardian; bonds; removal and discharge), the

court may grant a conservator the ri ght to access:

(1) the content of an electronic communication sent or

received by the protected person if the electronic

communication service or remote computing service is

permitted to disclose the content under 18 U.S.C. § 2702(b)

(relating to voluntary disclosure of customer communications

or records);

(2) the catalog of electronic communications sent or

received by the protected person; and

(3) another digital asset in which the protected person

has a right or interest.

§ 3904. Access by agent to digital assets of principal.

(a) Express grant of authority.--To the extent a power of

attorney expressly grants authority to an agent over the content

of an electronic communication of the principal, the agent may

access the content of an electronic communication sent or

received by the principal if the electronic communication

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service or remote computing service is permitted to disclose the

content under 18 U.S.C. § 2702(b) (relating to voluntary

disclosure of customer communications or records).

(b) Authority of agent.--Except as provided in subsection

(a) and unless otherwise provided by a power of attorney or the

court, an agent may access:

(1) the catalog of electronic communications sent or

received by the principal; and

(2) a digital asset in which the principal has a right

or interest.

§ 3905. Access by trustee to digital assets.

Subject to section 3906(b) (relating to fiduciary authority)

and unless otherwise provided by the court or the settlor in the

terms of a trust, a trustee or successor of the trustee that is:

(1) an original account holder may access a digital

asset held in trust, including the catalog of electronic

communications sent or received by the trustee and the

content of an electronic communication; and

(2) not an original account holder may access:

(i) the content of an electronic communication sent

or received by the original or a successor account holder

if the electronic communication service or remote

computing service is permitted to disclose the content

under 18 U.S.C. § 2702(b) (relating to voluntary

disclosure of customer communications or records);

(ii) the catalog of electronic communications sent

or received by the original or a successor account

holder; and

(iii) another digital asset in which the original or

a successor account holder has a right or interest.

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§ 3906. Fiduciary authority.

(a) Authority.--A fiduciary that is an account holder or has

the right under section 3902 (relating to a ccess by personal

representative to digital assets of decedent ), 3903 (relating to

access by conservator to digital assets of protected person),

3904 (relating to access by agent to digital assets of

principal) or 3905 (relating to access by trustee to digital

assets) to access a digital asset of an account holder:

(1) subject to the terms-of-service agreement and

concerning the asset to the extent of the account holder's

authority and the fiduciary's powers under this title;

(2) has, under 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

(3) is, under applicable computer fraud and unauthorized

access laws, including 18 Pa.C.S. §§ 7611(a)(1) and (2)

(relating to unlawful use of computer and other computer

crimes) and 7615 (relating to computer trespass), an

authorized user.

(b) Terms-of-service agreement.--If a provision in a terms-

of-service agreement limits a fiduciary's access to the digital

assets of the account holder, the provision is void, unless the

account holder, after the effective date of this chapter takes

effect, agreed to the provision by an affirmative act separate

from the account holder's assent to other provisions of the

terms-of-service agreement.

terms-of-service agreement is unenforceable against a fiduciary

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acting under this chapter to the extent the provision designates

law that enforces a limitation on a fiduciary's access to

digital assets which limitation is void under subsection (b).

(d) Effect of terms-of-service agreement.--Except as

provided in subsection (b), a fiduciary's access under this

chapter to a digital asset does not violate a terms-of-service

agreement, notwithstanding a provision of the agreement that

limits third-party access or requires notice of change in the

account holder's status.

(e) 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

decedent, protected person, principal or settlor:

(1) may access the property and any digital asset stored

in the property; and

(2) is an authorized user for purposes of applicable

computer fraud and unauthorized access laws, including 18

Pa.C.S. § 7611(a)(1) and (2).

§ 3907. Compliance.

(a) 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; or

(3) a copy of the asset to the extent permitted by

(b) Request.--If a request under subsection (a) is made by:

(1) a personal representative with a right of access

under section 3902 (relating to access by personal

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representative to digital assets 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) a conservator wi th the right of access under section

3903 (relating to access by conservator to digital assets of

protected person), the request must be accompanied by a

certified copy of the court order that gives the conservator

authority over the digital asset;

(3) an agent with the right of access under section 3904

(relating to access by agent to digital assets of principal),

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

(4) a trustee with the right of access under section

3905 (relating to access by trustee to digital assets), the

request must be accompanied by a certified copy of the trust

instrument or a certification of the trust under section

7790.3 (relating to certification of trust - UTC 1013) , that

authorizes the trustee to exercise authority over the digital

asset.

under subsection (a) not later than 15 days after receipt. If

the custodian fails to comply, the fiduciary may apply to the

court for an order directing compliance.

(d) Trustee.--Instead of furnishing a copy of the trust

instrument under subsection (b)(4), the trustee may provide the

certification of trust. The certification:

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(1) must contain the following information:

(i) that the trust exists and the date the trust

instrument was executed;

(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; and

(vi) whether a cotrustee has authority to sign or

otherwise authenticate and whether all or fewer than all

cotrustees are required to exercise powers of the

trustee;

(2) must be signed or otherwise authenticated by a

trustee;

(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

(4) need not contain the dispositive terms of the trust.

(e) Trust documents.--A custodian that receives a

certification of trust under subsection (d) may require the

trustee to provide copies of excerpts from the original trust

instrument and later amendments that designate the trustee and

confer on the trustee the power to act in the pending

transaction.

(f) Reliance on certification.--The following apply:

(1) A custodian that acts in reliance on a certification

under subsection (d) without knowledge that the

representations contained in the certification are incorrect

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is not liable to a person for the action and may assume

without inquiry the existence of facts stated in the

certification.

(2) A person that in good faith enters into a

transaction in reliance on a certification of trust under

subsection (d) may enforce the transaction against the trust

property as if the representations contained in the

certification were correct.

(g) Demand of trust instrument.--A person that demands the

trust instrument in addition to a certification of trust under

subsection (d) or excerpts under subsection (e) is liable for

damages if the court determines that the person did not act in

good faith in demanding the trust instrument.

(h) Copy of trust instrument.--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.

§ 3908. Custodian immunity.

A custodian and its officers, employees and agents are immune

from liability for an act done in good faith in compliance with

this chapter.

§ 3909. Uniformity of application and construction.

In applying and construing this chapter that is based on the

uniform act, consideration must be given to the need to promote

uniformity of the law with respect to its subject matter among

states that enact it.

§ 3910. 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. § 7001 et seq.) this chapter may modify, limit or

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supersede provisions of that act, but does not:

(1) modify, limit or supersede section 101(c) of the

Electronic Signatures in Global and National Commerce Act; or

(2) authorize electronic delivery of a notice described

in section 103(b) of the Electronic Signatures in Global and

National Commerce Act.

§ 3911. Applicability.

(a) Applicability.--Subject to subsection (b), 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 pro ceeding, 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) Employers.--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 2. This act shall take effect in 60 days.

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