Florida Senate - 2015                       CS for CS for SB 102
       
       
        
       By the Committees on Fiscal Policy; and Judiciary; and Senators
       Hukill, Joyner, and Latvala
       
       
       
       
       594-03400-15                                           2015102c2
    1                        A bill to be entitled                      
    2         An act relating to digital assets; providing a
    3         directive to the Division of Law Revision and
    4         Information; creating s. 740.001, F.S.; providing a
    5         short title; creating s. 740.101, F.S.; defining
    6         terms; creating s. 740.201, F.S.; authorizing a
    7         personal representative to have access to specified
    8         digital assets of a decedent under certain
    9         circumstances; creating s. 740.301, F.S.; authorizing
   10         a guardian to have access to specified digital assets
   11         of a ward under certain circumstances; creating s.
   12         740.401, F.S.; authorizing an agent to have access to
   13         specified digital assets of a principal under certain
   14         circumstances; creating s. 740.501, F.S.; authorizing
   15         a trustee to have access to specified digital assets
   16         held in trust under certain circumstances; creating s.
   17         740.601, F.S.; providing the rights of a fiduciary
   18         relating to digital assets; providing that specified
   19         provisions in a terms of service agreement are
   20         unenforceable or void as against the public policy of
   21         this state under certain circumstances; creating s.
   22         740.701, F.S.; providing requirements for compliance
   23         for a custodian, a personal representative, a
   24         guardian, an agent, a trustee, or another person that
   25         is entitled to receive and collect specified digital
   26         assets; providing for damages if a demand for the
   27         trust instrument is not made in good faith by a
   28         custodian; providing applicability; creating s.
   29         740.801, F.S.; providing immunity for a custodian and
   30         its officers, employees, and agents for any action
   31         done in good faith and in compliance with ch. 740,
   32         F.S.; creating s. 740.901, F.S.; clarifying the
   33         relationship of ch. 740, F.S., to the Electronic
   34         Signatures in Global and National Commerce Act;
   35         creating s. 740.911, F.S.; providing applicability;
   36         providing an effective date.
   37          
   38  Be It Enacted by the Legislature of the State of Florida:
   39  
   40         Section 1. The Division of Law Revision and Information is
   41  directed to create chapter 740, Florida Statutes, consisting of
   42  ss. 740.001-740.911, Florida Statutes, to be entitled “Fiduciary
   43  Access to Digital Assets.”
   44         Section 2. Section 740.001, Florida Statutes, is created to
   45  read:
   46         740.001 Short title.—This chapter may be cited as the
   47  “Florida Fiduciary Access to Digital Assets Act.”
   48         Section 3. Section 740.101, Florida Statutes, is created to
   49  read:
   50         740.101 Definitions.—As used in this chapter, the term:
   51         (1)Account holder” means a person that has entered into a
   52  terms-of-service agreement with a custodian or a fiduciary for
   53  such person. The term includes a deceased individual who entered
   54  into the agreement during the individual’s lifetime.
   55         (2)“Agent” means a person that is granted authority to act
   56  for a principal under a durable or nondurable power of attorney,
   57  whether denominated an agent, an attorney in fact, or otherwise.
   58  The term includes an original agent, a co-agent, and a successor
   59  agent.
   60         (3) “Carry” means to engage in the transmission of
   61  electronic communications.
   62         (4) “Catalogue of electronic communications” means
   63  information that identifies each person with which an account
   64  holder has had an electronic communication, the time and date of
   65  the communication, and the electronic address of the person.
   66         (5) “Content of an electronic communication” means
   67  information concerning the substance or meaning of the
   68  communication which:
   69         (a) Has been sent or received by the account holder;
   70         (b) Is in electronic storage by a custodian providing an
   71  electronic communication service to the public or is carried or
   72  maintained by a custodian providing a remote computing service
   73  to the public; and
   74         (c) Is not readily accessible to the public.
   75         (6) “Court” means a circuit court of this state.
   76         (7) “Custodian” means a person that carries, maintains,
   77  processes, receives, or stores a digital asset of an account
   78  holder.
   79         (8) “Digital asset” means an electronic record. The term
   80  does not include an underlying asset or liability to which an
   81  electronic record refers, unless the asset or liability is
   82  itself an electronic record.
   83         (9) “Electronic” means technology having electrical,
   84  digital, magnetic, wireless, optical, electromagnetic, or
   85  similar capabilities.
   86         (10) “Electronic communication” has the same meaning as
   87  provided in 18 U.S.C. s. 2510(12).
   88         (11) “Electronic communication service” means a custodian
   89  that provides to an account holder the ability to send or
   90  receive an electronic communication.
   91         (12) “Fiduciary” means a person that is an original,
   92  additional, or successor personal representative, guardian,
   93  agent, or trustee.
   94         (13) “Guardian” means a person who is appointed by the
   95  court as guardian of the property of a minor or an incapacitated
   96  individual. The term includes a person appointed by the court as
   97  an emergency temporary guardian of the property.
   98         (14) “Information” means data, text, images, videos,
   99  sounds, codes, computer programs, software, databases, or the
  100  like.
  101         (15) “Person” means an individual, estate, trust, business
  102  or nonprofit entity, public corporation, government or
  103  governmental subdivision, agency, or instrumentality, or other
  104  legal entity.
  105         (16) “Personal representative” means the fiduciary
  106  appointed by the court to administer the estate of a deceased
  107  individual pursuant to letters of administration or an order
  108  appointing a curator or administrator ad litem for the estate.
  109         (17) “Power of attorney” means a record that grants an
  110  agent authority to act in the place of a principal pursuant to
  111  chapter 709.
  112         (18) “Principal” means an individual who grants authority
  113  to an agent in a power of attorney.
  114         (19) “Record” means information that is inscribed on a
  115  tangible medium or that is stored in an electronic or other
  116  medium and is retrievable in perceivable form.
  117         (20) “Remote computing service” means a custodian that
  118  provides to an account holder computer processing services or
  119  the storage of digital assets by means of an electronic
  120  communications system as defined in 18 U.S.C. s. 2510(14).
  121         (21) “Termsofservice agreement” means an agreement that
  122  controls the relationship between an account holder and a
  123  custodian.
  124         (22) “Trustee” means a fiduciary that holds legal title to
  125  a digital asset pursuant to an agreement, declaration, or trust
  126  instrument that creates a beneficial interest in the settlor or
  127  others.
  128         (23) “Ward” means an individual for whom a guardian has
  129  been appointed.
  130         (24) “Will” means an instrument admitted to probate,
  131  including a codicil, executed by an individual in the manner
  132  prescribed by the Florida Probate Code, which disposes of the
  133  individual’s property on or after his or her death. The term
  134  includes an instrument that merely appoints a personal
  135  representative or revokes or revises another will.
  136         Section 4. Section 740.201, Florida Statutes, is created to
  137  read:
  138         740.201 Authority of personal representative over digital
  139  assets of a decedent.—Subject to s. 740.601(2) and unless
  140  otherwise provided by the court or the will of a decedent, a
  141  personal representative has the right to access:
  142         (1) The content of an electronic communication that the
  143  custodian is permitted to disclose under the Electronic
  144  Communications Privacy Act, 18 U.S.C. s. 2702(b) or 47 U.S.C. s.
  145  222;
  146         (2) The catalogue of electronic communications sent or
  147  received by the decedent; and
  148         (3) Any other digital asset in which the decedent had a
  149  right or interest at his or her death.
  150         Section 5. Section 740.301, Florida Statutes, is created to
  151  read:
  152         740.301 Authority of guardian over digital assets of a
  153  ward.—The court, after an opportunity for hearing, may grant a
  154  guardian the right to access:
  155         (1) The content of an electronic communication that the
  156  custodian is permitted to disclose under the Electronic
  157  Communications Privacy Act, 18 U.S.C. s. 2702(b) or 47 U.S.C. s.
  158  222;
  159         (2) The catalogue of electronic communications sent or
  160  received by the ward; and
  161         (3) Any other digital asset in which the ward has a right
  162  or interest.
  163         Section 6. Section 740.401, Florida Statutes, is created to
  164  read:
  165         740.401 Control by agent of digital assets.—
  166         (1) To the extent that a power of attorney expressly grants
  167  an agent authority over the content of an electronic
  168  communication of the principal, and subject to s. 740.601(2),
  169  the agent has the right to access the content of an electronic
  170  communication that the custodian is permitted to disclose under
  171  the Electronic Communications Privacy Act, 18 U.S.C. s. 2702(b)
  172  or 47 U.S.C. s. 222.
  173         (2) Except as provided in subsection (1) and unless
  174  otherwise provided by a power of attorney or a court order, an
  175  agent has the right to access:
  176         (a) The catalogue of electronic communications sent or
  177  received by the principal; and
  178         (b) Any other digital asset in which the principal has a
  179  right or interest.
  180         Section 7. Section 740.501, Florida Statutes, is created to
  181  read:
  182         740.501 Control by trustee of digital assets.—Subject to s.
  183  740.601(2) and unless otherwise provided by the court or the
  184  terms of a trust:
  185         (1) A trustee or a successor of a trustee who is an
  186  original account holder has the right to access each digital
  187  asset held in trust, including any catalogue of electronic
  188  communications sent or received and the content of an electronic
  189  communication; or
  190         (2) A trustee or a successor of a trustee who is not an
  191  original account holder has the right to access the following
  192  digital assets held in trust:
  193         (a) The catalogue of electronic communications sent or
  194  received by the account holder;
  195         (b) The content of an electronic communication that the
  196  custodian is permitted to disclose under the Electronic
  197  Communications Privacy Act, 18 U.S.C. s. 2702(b) or 47 U.S.C. s.
  198  222; and
  199         (c) Any other digital asset in which the account holder or
  200  any successor account holder has a right or interest.
  201         Section 8. Section 740.601, Florida Statutes, is created to
  202  read:
  203         740.601 Fiduciary access and authority.—
  204         (1) A fiduciary that is an account holder or that has the
  205  right under this chapter to access a digital asset of an account
  206  holder:
  207         (a) May take any action concerning the digital asset to the
  208  extent of the account holder’s authority and the fiduciary’s
  209  powers under the laws of this state, subject to the terms-of
  210  service agreement and copyright or other applicable law;
  211         (b) Has, for the purpose of applicable electronic privacy
  212  laws, the lawful consent of the account holder for the custodian
  213  to divulge the content of an electronic communication to the
  214  fiduciary; and
  215         (c) Is an authorized user under applicable computer fraud
  216  and unauthorized access laws.
  217         (2) Unless an account holder, after June 30, 2015, agrees,
  218  by an affirmative act separate from the account holder’s assent
  219  to other provisions of the terms of the service agreement, to a
  220  provision in the service agreement which limits a fiduciary’s
  221  access to a digital asset of the account holder:
  222         (a) The provision is void as against the public policy of
  223  this state; and
  224         (b) The fiduciary’s access under this chapter to a digital
  225  asset does not violate the terms of the service agreement even
  226  if the agreement requires notice of a change in the account
  227  holder’s status.
  228         (3) A choiceoflaw provision in a termsofservice
  229  agreement is unenforceable against a fiduciary acting under this
  230  chapter to the extent the provision designates a law that
  231  enforces a limitation on a fiduciary’s access to a digital asset
  232  which is void under subsection (2).
  233         (4) As to tangible personal property capable of receiving,
  234  storing, processing, or sending a digital asset, a fiduciary
  235  with authority over the property of a decedent, ward, principal,
  236  or settlor has the right to access the property and any digital
  237  asset stored in it and is an authorized user for purposes of any
  238  applicable computer fraud and unauthorized access laws,
  239  including the laws of this state.
  240         Section 9. Section 740.701, Florida Statutes, is created to
  241  read:
  242         740.701 Compliance.—
  243         (1) If a fiduciary that has a right under this chapter to
  244  access a digital asset of an account holder complies with
  245  subsection (2), the custodian shall comply with the fiduciary’s
  246  request for a record for:
  247         (a) Access to the digital asset;
  248         (b) Control of the digital asset; and
  249         (c) A copy of the digital asset to the extent authorized by
  250  copyright law.
  251         (2) If a request under subsection (1) is made by:
  252         (a) A personal representative who has the right of access
  253  under s. 740.201, the request must be accompanied by a certified
  254  copy of the letters of administration of the personal
  255  representative, an order authorizing a curator or administrator
  256  ad litem, or other court order;
  257         (b) A guardian that has the right of access under s.
  258  740.301, the request must be accompanied by a certified copy of
  259  letters of plenary guardianship of the property or a court order
  260  that gives the guardian authority over the digital asset;
  261         (c) An agent that has the right of access under s. 740.401,
  262  the request must be accompanied by an original or a copy of the
  263  power of attorney which authorizes the agent to exercise
  264  authority over the digital asset and a certification of the
  265  agent, under penalty of perjury, that the power of attorney is
  266  in effect;
  267         (d) A trustee that has the right of access under s.
  268  740.501, the request must be accompanied by a certified copy of
  269  the trust instrument, or a certification of trust under s.
  270  736.1017, which authorizes the trustee to exercise authority
  271  over the digital asset; or
  272         (e) A person that is entitled to receive and collect
  273  specified digital assets, the request must be accompanied by a
  274  certified copy of an order of summary administration issued
  275  pursuant to chapter 735.
  276         (3) A custodian shall comply with a request made under
  277  subsection (1) not later than 60 days after receipt. If the
  278  custodian fails to comply, the fiduciary may apply to the court
  279  for an order directing compliance.
  280         (4) A custodian that receives a certification of trust may
  281  require the trustee to provide copies of excerpts from the
  282  original trust instrument and later amendments which designate
  283  the trustee and confer on the trustee the power to act in the
  284  pending transaction.
  285         (5) A custodian that acts in reliance on a certification of
  286  trust without knowledge that the representations contained in it
  287  are incorrect is not liable to any person for so acting and may
  288  assume without inquiry the existence of facts stated in the
  289  certification.
  290         (6) A custodian that enters into a transaction in good
  291  faith and in reliance on a certification of trust may enforce
  292  the transaction against the trust property as if the
  293  representations contained in the certification were correct.
  294         (7) A custodian that demands the trust instrument in
  295  addition to a certification of trust or excerpts under
  296  subsection (4) is liable for damages if the court determines
  297  that the custodian did not act in good faith in demanding the
  298  trust instrument.
  299         (8) This section does not limit the right of a person to
  300  obtain a copy of a trust instrument in a judicial proceeding
  301  concerning the trust.
  302         Section 10. Section 740.801, Florida Statutes, is created
  303  to read:
  304         740.801 Immunity.—A custodian and its officers, employees,
  305  and agents are immune from liability for any action done in good
  306  faith in compliance with this chapter.
  307         Section 11. Section 740.901, Florida Statutes, is created
  308  to read:
  309         740.901 Relation to Electronic Signatures in Global and
  310  National Commerce Act.—This chapter modifies, limits, or
  311  supersedes the Electronic Signatures in Global and National
  312  Commerce Act, 15 U.S.C. ss. 7001 et seq., but does not modify,
  313  limit, or supersede s. 101(c) of that act, 15 U.S.C. s. 7001(c),
  314  or authorize electronic delivery of the notices described in s.
  315  103(b) of that act, 15 U.S.C. s. 7003(b).
  316         Section 12. Section 740.911, Florida Statutes, is created
  317  to read:
  318         740.911 Applicability.—
  319         (1) Subject to subsection (2), this chapter applies to:
  320         (a) An agent acting under a power of attorney executed
  321  before, on, or after July 1, 2015;
  322         (b) A personal representative acting for a decedent who
  323  died before, on, or after July 1, 2015;
  324         (c) A guardian appointed through a guardianship proceeding,
  325  whether pending in a court or commenced before, on, or after
  326  July 1, 2015; and
  327         (d) A trustee acting under a trust created before, on, or
  328  after July 1, 2015.
  329         (2) This chapter does not apply to a digital asset of an
  330  employer used by an employee in the ordinary course of the
  331  employer’s business.
  332         Section 13. This act shall take effect July 1, 2015.