PRINTER'S NO. 1050
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
827
Session of
2017
INTRODUCED BY KILLION, BROWNE, COSTA, FOLMER, HAYWOOD, HUGHES,
LAUGHLIN, McGARRIGLE, RAFFERTY, SCHWANK AND VULAKOVICH,
JUNE 29, 2017
REFERRED TO JUDICIARY, JUNE 29, 2017
AN ACT
Amending Title 20 (Decedents, Estates and Fiduciaries) of the
Pennsylvania Consolidated Statutes, enacting the Revised
Uniform Fiduciary Access to Digital Assets Act (2015);
providing for user direction and agreements, for disclosure
of digital assets and electronic communications, for
functions of fiduciaries and for compliance and immunity for
custodians of digital assets and electronic communications;
making conforming amendments; and providing for functions of
the Administrative Office of Pennsylvania Courts.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 711 of Title 20 of the Pennsylvania
Consolidated Statutes is amended by adding a paragraph to read:
§ 711. Mandatory exercise of jurisdiction through orphans'
court division in general.
Except as provided in section 712 (relating to nonmandatory
exercise of jurisdiction through the orphans' court division)
and section 713 (relating to special provisions for Philadelphia
County), the jurisdiction of the court of common pleas over the
following shall be exercised through its orphans' court
division:
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* * *
(23) Digital assets.--All matters pertaining to Chapter
39 (relating to uniform fiduciary access to digital assets).
Section 2. Title 20 is amended by adding a chapter to read:
CHAPTER 39
UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS
Sec.
3901. Short title of chapter.
3902. Definitions.
3903. Applicability.
3904. User direction for disclosure of digital assets.
3905. Terms-of-service agreement.
3906. Procedure for disclosing digital assets.
3907. Disclosure of content of electronic communications of
deceased user.
3908. Disclosure of other digital assets of deceased user.
3909. Disclosure of content of electronic communications of
principal.
3910. Disclosure of other digital assets of principal.
3911. Disclosure of digital assets held in trust when trustee
is original user.
3912. Disclosure of contents of electronic communications held
in trust when trustee not original user.
3913. Disclosure of other digital assets held in trust when
trustee not original user.
3914. Disclosure of digital assets to guardian of the estate.
3915. Fiduciary duty and authority.
3916. Custodian compliance and immunity.
3917. Uniformity of application and construction.
3918. Relation to Electronic Signatures in Global and National
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Commerce Act.
§ 3901. Short title of chapter.
This chapter may be cited as the Revised Uniform Fiduciary
Access to Digital Assets Act (2015).
§ 3902. 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." An arrangement under a terms-of-service agreement
in which a custodian:
(1) carries, maintains, processes, receives or stores a
digital asset of the user; or
(2) provides goods or services to the user.
"Agent." As defined in section 5601(f) (relating to general
provisions).
"Carries." Engages in the transmission of an electronic
communication.
"Catalog of electronic communications." Information which
identifies:
(1) each person that has had an electronic communication
with a user;
(2) the time and date of the electronic communication;
and
(3) the electronic address of the person under paragraph
(1).
"Conservator." A guardian of the estate.
"Content of an electronic communication." Information
concerning the substance or meaning of the electronic
communication which:
(1) has been sent or received by a user;
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(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
(3) is not readily accessible to the public.
"Custodian." A person that carries, maintains, processes,
receives or stores a digital asset of a user.
"Designated recipient." A person chosen by a user using an
online tool to administer digital assets of the user.
"Digital asset." 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.
"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 a user the ability to send or receive an electronic
communication.
"Electronic communications system." As defined in 18 U.S.C.
§ 2510(14).
"Guardian of the estate." A person appointed by a court to
manage the estate of a living individual. The term includes a
limited guardian of the estate.
"Information." Data, text, images, videos, sounds, codes,
computer programs, software, databases or the like.
"Online tool." An electronic service provided by a custodian
which allows the user, in an agreement distinct from the terms-
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of-service agreement between the custodian and user, to provide
directions for disclosure or nondisclosure of digital assets to
a third person.
"Person." Any individual, estate, business or nonprofit
entity, public corporation, government or governmental
subdivision, agency or instrumentality; or other legal entity.
"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 guardian of the
estate has been appointed. The term includes an individual for
whom an application for the appointment of a guardian of the
estate is pending.
"Record." Information that is inscribed on a tangible medium
or that is stored in an electronic or other medium and is
retrievable in perceivable form.
"Remote computing service." A custodian that provides to a
user computer-processing services or the storage of digital
assets by means of an electronic communications system.
"Terms-of-service agreement." An agreement which controls
the relationship between a user and a custodian.
"Trustee." A fiduciary with legal title to property under an
agreement or declaration which creates a beneficial interest in
another. The term includes a successor trustee.
"User." A person that has an account with a custodian.
§ 3903. Applicability.
(a) Time.--This chapter applies to:
(1) a fiduciary acting under a will or power of attorney
executed before, on or after the effective date of this
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section;
(2) a personal representative acting for a decedent who
died before, on or after the effective date of this section;
(3) a proceeding for the appointment of a guardian of
the estate commenced before, on or after the effective date
of this section; and
(4) a trustee acting under a trust created before, on or
after the effective date of this section.
(b) Residence of user.--This chapter applies to a custodian
if the user resides in this Commonwealth or resided in this
Commonwealth at the time of the user's death.
(c) 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.
§ 3904. User direction for disclosure of digital assets.
(a) Use of online tool.--
(1) A user may use an online tool to direct the
custodian to disclose or not to disclose some or all of the
user's digital assets, including the content of electronic
communications.
(2) 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.
(b) Nonuse of online tool.--If a user has not used an online
tool to give direction under subsection (a) or if the custodian
has not provided an online tool, the user may, in a will, trust,
power of attorney or other record, allow or prohibit disclosure
to a fiduciary of some or all of the user's digital assets,
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including the content of electronic communications sent or
received by the user.
(c) User's direction.--A user's direction under subsection
(a) or (b) overrides a contrary provision in a terms-of-service
agreement which does not require the user to act affirmatively
and distinctly from the user's assent to the terms of service.
§ 3905. Terms-of-service agreement.
(a) Alteration of rights under this chapter.--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.
(b) Additional rights under this chapter.--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 acts or represents.
(c) Absence of direction.--A fiduciary'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 3904 (relating to user direction for
disclosure of digital assets).
§ 3906. Procedure for disclosing digital assets.
(a) Authority of custodian.--When disclosing digital assets
of a user under this chapter, the custodian has the sole
discretion to:
(1) grant a fiduciary or designated recipient full
access to the user's account;
(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
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(3) provide a fiduciary or designated recipient a copy
in a record of any digital asset which, 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.
(b) Charge.--A custodian may assess a reasonable
administrative charge for the cost of disclosing digital assets
under this chapter.
(c) Deleted digital assets.--A custodian need not disclose
under this chapter a digital asset deleted by a user.
(d) Segregation.--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
digital assets if segregation of the digital 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 do any of the
following:
(1) Disclose a subset limited by date of the user's
digital assets.
(2) Disclose all of the user's digital assets to the
fiduciary or designated recipient.
(3) Disclose none of the user's digital assets.
(4) Disclose all of the user's digital assets to the
court for review in camera.
§ 3907. Disclosure of content of electronic communications of
deceased user.
If a deceased user consented or a court directs disclosure of
the content of electronic communications of the user, the
custodian shall disclose to the personal representative of the
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estate of the user the content of an electronic communication
sent or received by the user if the personal 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 letters;
(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:
(i) any 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:
(A) the user had a specific account with the
custodian, identifiable by the information specified
in subparagraph (i);
(B) disclosure of the content of electronic
communications of the user would not violate 18
U.S.C. Ch. 21 (relating to stored wire and electronic
communications and transactional records access),
section 222 of the Communications Act of 1934 (48
Stat. 1064, 47 U.S.C. § 222) or other applicable law;
(C) unless the user provided direction using an
online tool, the user consented to disclosure of the
content of electronic communications; or
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(D) disclosure of the content of electronic
communications of the user is reasonably necessary
for administration of the estate.
§ 3908. Disclosure of other digital assets of deceased user.
(a) Obligations of representative.--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 any
digital assets, other than the content of electronic
communications, of the user, if the personal 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 letters; and
(4) if requested by the custodian:
(i) any 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;
(iii) an affidavit by the personal representative
stating that disclosure of the user's digital assets is
reasonably necessary for administration of the estate; or
(iv) a finding of the court that:
(A) the user had a specific account with the
custodian, identifiable by the information specified
in subparagraph (i); or
(B) disclosure of the user's digital assets is
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reasonably necessary for administration of the
estate.
(b) Finding of the court.--For the purposes of disclosure to
the personal representative of the estate of a deceased user of
a catalog of electronic communications, the issuance of letters
testamentary or letters of administration to the personal
representative by a register under section 901 (relating to
register's jurisdiction) shall, unless otherwise provided by
rules of court or a court order, have the same force and effect
as a finding of the court under subsection (a)(4)(iv) and
section 3916(e) (relating to custodian compliance and immunity),
if the personal representative:
(1) files with the register an affidavit subject to
penalties under 18 Pa.C.S. § 4904 (relating to unsworn
falsification to authorities) setting forth the information
required by subsection (a)(4)(i), (ii) and (iii) regarding
records of electronic communications in the custody or
control of the custodian; and
(2) upon request, provides to the custodian a copy of
the affidavit bearing evidence of filing with the register.
(c) Form of affidavit.--The affidavit required by subsection
(a)(4)(iii) or (b)(1) may be provided by:
(1) an averment in the petition under section 3153
(relating to contents of petition) or the affidavit under
section 3154 (relating to affidavit and oath); or
(2) a supplement to the petition under section 3153 or
the affidavit under section 3154 which is filed with and
sworn before the register.
§ 3909. Disclosure of content of electronic communications of
principal.
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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 of an electronic communication 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
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:
(i) any number, username, address or other unique
subscriber or account identifier, assigned by the
custodian to identify the principal's account; or
(ii) evidence linking the account to the principal.
§ 3910. 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 catalog
of electronic communications sent or received by the principal
and any 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
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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 under
section 5606 (relating to proof of continuance of powers of
attorney by affidavit); and
(4) if requested by the custodian:
(i) any number, username, address or other unique
subscriber or account identifier, assigned by the
custodian to identify the principal's account; or
(ii) evidence linking the account to the principal.
§ 3911. 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 catalog of electronic communications of the trustee
and the content of electronic communications.
§ 3912. 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
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certification of the trust under section 7790.3 (relating to
certification of trust - UTC 1013), which 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:
(i) any number, username, address or other unique
subscriber or account identifier, assigned by the
custodian to identify the trust's account; or
(ii) evidence linking the account to the trust.
§ 3913. 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 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:
(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 7790.3 (relating to
certification of trust - UTC 1013);
(3) a certification by the trustee, under penalty of
perjury, that the trust exists and the trustee is a currently
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acting trustee of the trust; and
(4) if requested by the custodian:
(i) any number, username, address or other unique
subscriber or account identifier, assigned by the
custodian to identify the trust's account; or
(ii) evidence linking the account to the trust.
§ 3914. Disclosure of digital assets to guardian of the estate.
(a) Access.--After an opportunity for a hearing, the court
may grant a guardian of the estate access to the digital assets
of a protected person.
(b) Disclosure.--Unless otherwise ordered by the court or
directed by the user, a custodian shall disclose to a guardian
of the estate the catalog of electronic communications sent or
received by the 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 guardian of the
estate gives the custodian:
(1) a written request for disclosure in physical or
electronic form;
(2) a certified copy of the court order which gives the
guardian of the estate authority over the digital assets of
the protected person; and
(3) if requested by the custodian:
(i) any 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.
(c) Account activity.--A guardian of the estate with general
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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 subsection must be accompanied
by a certified copy of the court order giving the guardian of
the estate authority over the protected person's property.
§ 3915. Fiduciary duty and authority.
(a) Duties.--The legal duties imposed on a fiduciary charged
with managing tangible property apply to the management of
digital assets, including:
(1) the duty of care;
(2) the duty of loyalty; and
(3) the duty of confidentiality.
(b) Authority.--A fiduciary's authority with respect to a
digital asset of a user:
(1) except as otherwise provided in section 3904
(relating to user direction for disclosure of digital
assets), is subject to the applicable terms of service;
(2) is subject to other applicable law, including
copyright law;
(3) is limited by the scope of the fiduciary's duties;
and
(4) may not be used to impersonate the user.
(c) Access.--A fiduciary with authority over the property of
a decedent, protected person, principal or settlor has the right
to access any digital asset:
(1) in which the decedent, protected person, principal
or settlor had a right or interest; and
(2) which is not held by a custodian or subject to a
terms-of-service agreement.
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(d) Authorized user.--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 18 Pa.C.S. Ch. 76 (relating to computer
offenses).
(e) Tangible, personal property.--A fiduciary with authority
over the tangible, personal property of a 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 the purpose of computer
fraud and unauthorized computer access laws, including 18
Pa.C.S. Ch. 76.
(f) Disclosure by custodian.--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.
(g) Termination of account.--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 be accompanied by:
(1) if the user is deceased, a certified copy of the
death certificate of the user;
(2) a certified copy of the letters, court order, power
of attorney or trust, giving the fiduciary authority over the
account; and
(3) if requested by the custodian:
(i) any number, username, address or other unique
subscriber or account identifier, assigned by the
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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 subparagraph (i).
§ 3916. Custodian compliance and immunity.
(a) Requirement.--Not later than 60 days after receipt of
the information required under sections 3907 (relating to
disclosure of content of electronic communications of deceased
user) through 3915 (relating to fiduciary duty and authority), 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 representative may apply to the court
for an order directing compliance.
(b) Court order.--An order under subsection (a) directing
compliance must contain a finding that compliance is not in
violation of 18 U.S.C. § 2702 (relating to voluntary disclosure
of customer communications or records).
(c) Notification.--A custodian may notify the user that a
request for disclosure or to terminate an account was made under
this chapter.
(d) Lawful access following termination request.--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.
(e) Additional court orders.--This chapter does not limit a
custodian's ability to obtain or require a fiduciary or
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designated recipient requesting disclosure or termination under
this chapter to obtain a court order which:
(1) specifies that an account belongs to the protected
person or principal;
(2) specifies that there is sufficient consent from the
protected person or principal to support the requested
disclosure; and
(3) contains a finding required by law other than this
chapter.
(f) 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.
§ 3917. 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 that enact it.
§ 3918. Relation to Electronic Signatures in Global and
National Commerce Act.
T o 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 3. Section 5601.4(a) of Title 20 is amended by
adding a paragraph to read:
§ 5601.4. Authority that requires specific and general grant of
authority.
(a) General rule.--An agent under a power of attorney may do
the following on behalf of the principal or with the principal's
property only if the power of attorney expressly grants the
agent the authority and exercise of the authority is not
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otherwise prohibited by another agreement or instrument to which
the authority or property is subject:
* * *
(9) Access the electronic communications and digital
assess of the principal. As used in this paragraph, the
following words and phrases shall have the meanings given to
them in this subsection unless the context clearly indicates
otherwise:
"Digital assets." As defined in section 3902
(relating to definitions).
"Electronic communication." As defined in section
3902.
* * *
Section 4. The Administrative Office of Pennsylvania Courts
may promulgate rules and forms to implement the addition of 20
Pa.C.S. § 3908(a)(4)(iv) and (b).
Section 5. The addition of 20 Pa.C.S. § 5601.4(a)(9) shall
apply to a power of attorney executed on or after the effective
date of this section.
Section 6. This act shall take effect in 60 days.
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