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.