Florida Senate - 2015 CS for SB 102 By the Committee on Judiciary; and Senators Hukill, Joyner, and Latvala 590-01486-15 2015102c1 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); 145 (2) The catalogue of electronic communications sent or 146 received by the decedent; and 147 (3) Any other digital asset in which the decedent had a 148 right or interest at his or her death. 149 Section 5. Section 740.301, Florida Statutes, is created to 150 read: 151 740.301 Authority of guardian over digital assets of a 152 ward.—The court, after an opportunity for hearing, may grant a 153 guardian the right to access: 154 (1) The content of an electronic communication that the 155 custodian is permitted to disclose under the Electronic 156 Communications Privacy Act, 18 U.S.C. s. 2702(b); 157 (2) The catalogue of electronic communications sent or 158 received by the ward; and 159 (3) Any other digital asset in which the ward has a right 160 or interest. 161 Section 6. Section 740.401, Florida Statutes, is created to 162 read: 163 740.401 Control by agent of digital assets.— 164 (1) To the extent that a power of attorney expressly grants 165 an agent authority over the content of an electronic 166 communication of the principal, and subject to s. 740.601(2), 167 the agent has the right to access the content of an electronic 168 communication that the custodian is permitted to disclose under 169 the Electronic Communications Privacy Act, 18 U.S.C. s. 2702(b). 170 (2) Except as provided in subsection (1) and unless 171 otherwise provided by a power of attorney or a court order, an 172 agent has the right to access: 173 (a) The catalogue of electronic communications sent or 174 received by the principal; and 175 (b) Any other digital asset in which the principal has a 176 right or interest. 177 Section 7. Section 740.501, Florida Statutes, is created to 178 read: 179 740.501 Control by trustee of digital assets.—Subject to s. 180 740.601(2) and unless otherwise provided by the court or the 181 terms of a trust: 182 (1) A trustee or a successor of a trustee who is an 183 original account holder has the right to access each digital 184 asset held in trust, including any catalogue of electronic 185 communications sent or received and the content of an electronic 186 communication; or 187 (2) A trustee or a successor of a trustee who is not an 188 original account holder has the right to access the following 189 digital assets held in trust: 190 (a) The catalogue of electronic communications sent or 191 received by the account holder; 192 (b) The content of an electronic communication that the 193 custodian is permitted to disclose under the Electronic 194 Communications Privacy Act, 18 U.S.C. s. 2702(b); and 195 (c) Any other digital asset in which the account holder or 196 any successor account holder has a right or interest. 197 Section 8. Section 740.601, Florida Statutes, is created to 198 read: 199 740.601 Fiduciary access and authority.— 200 (1) A fiduciary that is an account holder or that has the 201 right under this chapter to access a digital asset of an account 202 holder: 203 (a) May take any action concerning the digital asset to the 204 extent of the account holder’s authority and the fiduciary’s 205 powers under the laws of this state, subject to the terms-of 206 service agreement and copyright or other applicable law; 207 (b) Has, for the purpose of applicable electronic privacy 208 laws, the lawful consent of the account holder for the custodian 209 to divulge the content of an electronic communication to the 210 fiduciary; and 211 (c) Is an authorized user under applicable computer fraud 212 and unauthorized access laws. 213 (2) Unless an account holder, after June 30, 2015, agrees, 214 by an affirmative act separate from the account holder’s assent 215 to other provisions of the terms of the service agreement, to a 216 provision in the service agreement which limits a fiduciary’s 217 access to a digital asset of the account holder: 218 (a) The provision is void as against the public policy of 219 this state; and 220 (b) The fiduciary’s access under this chapter to a digital 221 asset does not violate the terms of the service agreement even 222 if the agreement requires notice of a change in the account 223 holder’s status. 224 (3) A choiceoflaw provision in a termsofservice 225 agreement is unenforceable against a fiduciary acting under this 226 chapter to the extent the provision designates a law that 227 enforces a limitation on a fiduciary’s access to a digital asset 228 which is void under subsection (2). 229 (4) As to tangible personal property capable of receiving, 230 storing, processing, or sending a digital asset, a fiduciary 231 with authority over the property of a decedent, ward, principal, 232 or settlor has the right to access the property and any digital 233 asset stored in it and is an authorized user for purposes of any 234 applicable computer fraud and unauthorized access laws, 235 including the laws of this state. 236 Section 9. Section 740.701, Florida Statutes, is created to 237 read: 238 740.701 Compliance.— 239 (1) If a fiduciary that has a right under this chapter to 240 access a digital asset of an account holder complies with 241 subsection (2), the custodian shall comply with the fiduciary’s 242 request for a record for: 243 (a) Access to the digital asset; 244 (b) Control of the digital asset; and 245 (c) A copy of the digital asset to the extent authorized by 246 copyright law. 247 (2) If a request under subsection (1) is made by: 248 (a) A personal representative who has the right of access 249 under s. 740.201, the request must be accompanied by a certified 250 copy of the letters of administration of the personal 251 representative, an order authorizing a curator or administrator 252 ad litem, or other court order; 253 (b) A guardian that has the right of access under s. 254 740.301, the request must be accompanied by a certified copy of 255 letters of plenary guardianship of the property or a court order 256 that gives the guardian authority over the digital asset; 257 (c) An agent that has the right of access under s. 740.401, 258 the request must be accompanied by an original or a copy of the 259 power of attorney which authorizes the agent to exercise 260 authority over the digital asset and a certification of the 261 agent, under penalty of perjury, that the power of attorney is 262 in effect; 263 (d) A trustee that has the right of access under s. 264 740.501, the request must be accompanied by a certified copy of 265 the trust instrument, or a certification of trust under s. 266 736.1017, which authorizes the trustee to exercise authority 267 over the digital asset; or 268 (e) A person that is entitled to receive and collect 269 specified digital assets, the request must be accompanied by a 270 certified copy of an order of summary administration issued 271 pursuant to chapter 735. 272 (3) A custodian shall comply with a request made under 273 subsection (1) not later than 60 days after receipt. If the 274 custodian fails to comply, the fiduciary may apply to the court 275 for an order directing compliance. 276 (4) A custodian that receives a certification of trust may 277 require the trustee to provide copies of excerpts from the 278 original trust instrument and later amendments which designate 279 the trustee and confer on the trustee the power to act in the 280 pending transaction. 281 (5) A custodian that acts in reliance on a certification of 282 trust without knowledge that the representations contained in it 283 are incorrect is not liable to any person for so acting and may 284 assume without inquiry the existence of facts stated in the 285 certification. 286 (6) A custodian that enters into a transaction in good 287 faith and in reliance on a certification of trust may enforce 288 the transaction against the trust property as if the 289 representations contained in the certification were correct. 290 (7) A custodian that demands the trust instrument in 291 addition to a certification of trust or excerpts under 292 subsection (4) is liable for damages if the court determines 293 that the custodian did not act in good faith in demanding the 294 trust instrument. 295 (8) This section does not limit the right of a person to 296 obtain a copy of a trust instrument in a judicial proceeding 297 concerning the trust. 298 Section 10. Section 740.801, Florida Statutes, is created 299 to read: 300 740.801 Immunity.—A custodian and its officers, employees, 301 and agents are immune from liability for any action done in good 302 faith in compliance with this chapter. 303 Section 11. Section 740.901, Florida Statutes, is created 304 to read: 305 740.901 Relation to Electronic Signatures in Global and 306 National Commerce Act.—This chapter modifies, limits, or 307 supersedes the Electronic Signatures in Global and National 308 Commerce Act, 15 U.S.C. ss. 7001 et seq., but does not modify, 309 limit, or supersede s. 101(c) of that act, 15 U.S.C. s. 7001(c), 310 or authorize electronic delivery of the notices described in s. 311 103(b) of that act, 15 U.S.C. s. 7003(b). 312 Section 12. Section 740.911, Florida Statutes, is created 313 to read: 314 740.911 Applicability.— 315 (1) Subject to subsection (2), this chapter applies to: 316 (a) An agent acting under a power of attorney executed 317 before, on, or after July 1, 2015; 318 (b) A personal representative acting for a decedent who 319 died before, on, or after July 1, 2015; 320 (c) A guardian appointed through a guardianship proceeding, 321 whether pending in a court or commenced before, on, or after 322 July 1, 2015; and 323 (d) A trustee acting under a trust created before, on, or 324 after July 1, 2015. 325 (2) This chapter does not apply to a digital asset of an 326 employer used by an employee in the ordinary course of the 327 employer’s business. 328 Section 13. This act shall take effect July 1, 2015.