Uniform Fiduciary Access to Digital Assets Act.

ORIGINAL
Senate
ENGROSSED
File No
.
SF0034

ENROLLED ACT NO. 25,

SENATE

SIXTY-THIRD LEGISLATURE OF THE STATE OF WYOMING
2016 Budget Session

AN ACT relating to fiduciaries; providing fiduciaries access to electronic records of a user of an electronic communication service as specified; specifying procedures for disclosure of electronic records; imposing duties on fiduciaries and custodians of electronic records; specifying applicability; providing definitions; and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1
.

W.S. 2
‑
3
‑
1001 through 2
‑
3
‑
10
17

are
created to read:

ARTICLE
1
0
UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT

2
‑
3
‑
1001
.

Uniform Fiduciary Access to Digital Assets Act; short title.

This act shall be known and may be cited as the
"
Uniform Fiduciary Access to Digital Assets Act
.
"

2
‑
3
‑
1002
.

Definitions.

(a)

As used in this act:

(
i
)

"
Account
"
means an arrangement under a terms

of

service agreement in which a custodian carries, maintains, processes, receives or stores a digital asset of
a
user or provides goods or services to
a
user;

(ii)

"
Agent
"
means an attorney

in

fact granted authority under a power of attorney;

(iii)

"
Carries
"
means engages in the transmission of an electronic communication;

(iv)

"
Catalogue of electronic communications
"
means information that identifies
a
person with which a user has had an electronic communication,
including the person
'
s electronic address, and
the time and date of the communication;

(v)

"
Content of electronic communication
s
"
means information concerning the substance or meaning of
a
n electronic
communication
that
:

(A)

Has been sent or received by a user;

(B)

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

(C)

Is
not readily accessible to the public.

(vi)

"
Custodian
"
means a person that carries, maintains, processes, receives or stores a digital asset of a user
through the internet as defined in W.S. 9
‑
2
‑
1035(a)(iii)
;

(v
ii
)

"
Designated recipient
"
means a person chosen by a user using an online tool to administer digital assets of the user;

(
viii
)

"
Digital asset
"
means an electronic record in which
a person
has a right or interest.
"
Digital asset
"

does not include an underlying asset or liability unless the asset or liability is itself an electronic record;

(
i
x
)

"
Electronic
"
means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities;

(
x
)

"
Electronic communication
"
mean
s an electronic communication as defined in
section 2
510
of title 18 of the United States Code
, as amended
;

(
x
i
)

"
Electronic

communication service
"
means a custodian that provides to a user the ability to send or receive an electronic communication
;

(xii)

"Fiduciary" means a personal representative, trustee, executor, administrator, guardian, agent, conservator or other person performing substantially these same functions. To be a fiduciary under this act a person must be authorized to act as a fiduciary with respect to the digital assets of a user or a user's estate. A fiduciary shall have those privileges, powers and obligations granted under this act which are not inconsistent with other privileges, powers or obligations imposed by this act on specific types of fiduciaries;

(
x
i
i
i
)

"
Information
"
means data, text, images, videos, sounds, codes, computer programs, software, databases or the like
;

(
x
i
v
)

"
Online tool
"
means an electronic service provided by a custodian that allows
a
user
,
in an agreement distinct from
a
terms

of

service agreement between the custodian and
the
user, to provide directions for disclosure or nondisclosure of digital assets to a third person
;

(
x
v
)

"
Principal
"
means
a person
who grants authority to an agent in a power of attorney;

(x
v
i
)

"
Record
"
means information that is inscribed on a tangible medium or stored in an electronic or other medium and is retrievable in perceivable form;

(x
v
i
i
)

"
Remote
computing service
"
means a custodian that provides to a user computer

processing services or the storage of digital assets by means of an electronic communications system, as defined in
s
ection

2510
of title 18 of the United States Code, as amended
;

(xv
ii
i
)

"
Terms

of

service agreement
"
means an agreement that controls the relationship between a user and a custodian;

(x
ix
)

"
User
"
means a person that has an account with a custodian;

(x
x
)

"
Ward
"
means
a person
for whom a conservator has been appointed
,
includ
ing
a
person
for whom an application for the appointment of a conservator is pending
;

(xxi
)

"
This act
"
means W.S. 2
‑
3
‑
1001 through 2
‑
3
‑
1017
.

2
‑
3
‑
1003
.

Applicability.

(a)

This act applies to:

(
i
)

A fiduciary acting under a will
, power of attorney or other authorization to act as a fiduciary with respect to the digital assets of a user entered or
executed before, on

or after
July 1, 201
6
;

(ii)

A personal representative acting for a decedent who died before, on or after
July 1, 201
6
;

(iii)

A conservatorship proceeding commenced before, on or after
July 1, 201
6
; and

(iv)

A
trustee acting under a trust created before, on or after
July 1, 201
6
.

(b)

This act applies to a custodian
of digital asset
s
of a user who
resid
es
in th
e
state or resided in th
e
state at the time of the user
'
s death.

(c)

This act does not apply to digital asset
s
of an employer used by an employee in the ordinary course of the employer
'
s business.

2
‑
3
‑
1004
.

User direction for disclosure of digital assets.

(a)

A user may use an online tool to direct
a
custodian to disclose or not to disclose
to a designated recipient
some or all of the user
'
s digital assets, including the content of electronic communications
sent or received by the user
. If the online tool
at all times
allows
a
user to modify or delete a direction
to a custodian to disclose some or all of the user
'
s digital assets
,
the
direction regarding disclosure overrides a contrary direction by the user in a will, trust, power of attorney or other
like
record.

(b)

If a user has not used an online tool to
direct a custodian
under subsection (a) of this section or if
a
custodian has not provided an online tool, the user may
direct
in a will, trust, power of attorney or other
like
record
the
disclosure
or nondisclosure
to a fiduciary some or all of the user
'
s digital assets, including the content of electronic communications sent or received by the user.

(c)

A user
'
s direction under subsection
(a) or (b) of this section override
s
a contrary provision
in a terms

of

service agreement
if the agreement did not
require the user to act affirmatively and distinctly from the user
'
s assent to the
agreement
.

2
‑
3
‑
1005
.

Terms of service agreement.

(a)

This act does not change or impair a right of a cu
stodian or a user
under a terms

of

service agreement to access and use digital assets of the user.

(b)

This act does not give a fiduciary
or designated recipient
new or expanded rights other than those
rights
held by the user for whom, or for whose estate, the fiduciary
or designated recipient
acts or represents.

(c)

A fiduciary
'
s
or designated recipient's
access to digital assets may be modified or eliminated by a user, federal law or a terms

of

service agreement if the user has not provided direction under W.S. 2
‑
3
‑
1004.

2
‑
3
‑
1006
.

Procedure for disclosing digital assets.

(a)

When disclosing digital assets of a user under this act,
a
custodian may:

(
i
)

G
rant a

fiduciary or designated recipient full access to the user
'
s account;

(
ii
)

G
rant 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

(iii)

Provide a fiduciary or designated recipient a copy in a record of any digital asset that, 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)

A custodian may assess a reasonable administrative
fee
for the cost of disclosing digital assets under this act.

(c)

A custodian
is not required to
disclose under this act a digital asset deleted by a user.

(d)

A custodian is not required to disclose under this act a user
'
s digital assets i
f
the
user directs or a fiduciary requests a custodian to disclose some, but not all, of the user
'
s digital assets
and the
segregation of the assets would impose an undue burden on the custodian. If
a
custodian
finds

that
a
direction or request imposes an undue burden, the custodian or fiduciary may seek an order from the
circuit court or other court of competent jurisdiction
to disclose:

(
i
)

A subset
of the user
'
s digital assets
limited by date
to the fiduciary or designated recipient;

(ii)

All of the user
'
s digital assets to the fiduciary or designated recipient;

(iii)

None of the user
'
s digital assets
to the fiduciary or designated recipient
; or

(iv)

All
of the user
'
s digital assets to the court for
an
in camera
review
.

2
‑
3
‑
1007
.

Disclosure of
the
content of electronic communications of
a
deceased user.

(a)

A custodian shall disclose to a personal representative of the estate of a deceased user the content of electronic communication
s
sent or received by the user if the
user directed disclosure
as
specified
in W.S. 2
‑
3
‑
1004
or a court directs disclosure of the content of electronic communications of the user
and if the
representative

provide
s the custodian
with the following
:

(
i
)

A request for disclosure in
written
or electronic form;

(ii)

A certified copy of the death certificate of the user;

(iii)

A certified

copy of the
court order appointing
the
personal representative
;

(iv)

Unless the user provided direction using an online tool, a copy of the user
'
s will, trust, power of attorney or other
like
record evidencing the user
'
s consent to disclosure of the content of electronic communications; and

(v)

If requested by the custodian:

(A)

A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the user
'
s account;

(B)

Evidence linking the account to the user; or

(C)

A finding by
a

circuit court or other court of competent jurisdiction
that:

(I)

The
user had a specific account with the custodian identifiable by the information specified in subparagraph (A) of this
paragraph
;

(II)

Disclosure of the content of electronic communications of the user would not violate
s
ection 2701 et seq.
of title 18
of the United States Code, as amended,
or section
222
of title 47 of the United States Code,
as amended, or other applicable law;

(III)

Unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications
as specified in W.S. 2
‑
3
‑
1004
; or

(IV)

Disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.

2
‑
3
‑
1008
.

Disclosure of other digital assets of
a
deceased user.

(a)

Unless
otherwise directed by a court order or a user as spec
ified in W.S. 2
‑
3
‑
1004
, a custodian shall disclose to the personal representative of the estate of a deceased user a catalogue of electronic communications sent or received by the user and digital assets
of the user
, other than the content of electronic communications, if the representative
provides
the custodian
with the following
:

(
i
)

A request for disclosure in
written
or electronic form;

(ii)

A certified copy of the death certificate of the user;

(iii)

A certified copy of
the court order appointing the personal representative
; and

(iv)

If
requested by the custodian:

(A)

A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the user
'
s account;

(B)

Evidence linking the account to the user;

(C)

An affidavit stating that disclosure of the user
'
s digital assets is reasonably necessary for administration of the estate; or

(D)

A finding by
a

circuit court or other court of competent jurisdiction
that:

(I)

The
user had a specific account with the custodian identifiable by the information specified in subparagraph (A) of this
paragraph
; or

(II)

Disclosure of the user
'
s digital assets is reasonably necessary for administration of the estate.

2
‑
3
‑
1009
.

Disclosure of content of electronic communications of
a
principal.

(a)

To the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by
a
principal and unless otherwise
directed by a court order or
the principal
as specified in W.S. 2
‑
3
‑
1004
,
a custodian shall disclose to the agent the content
of electronic communications sent or
received by the principal
if the agent
provides
the custodian
with the following
:

(
i
)

A request for disclosure in
written
or electronic form;

(ii)

An original or copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal;

(iii)

A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and

(iv)

If
requested by the custodian:

(A)

A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the principal
'
s account; or

(B)

Evidence linking the account to the principal.

2
‑
3
‑
1010
.

Disclosure of other digital assets of
a
principal.

(a)

Unless otherwise
directed
by
a
court
order
,

a
principal
as specified in W.S. 2
‑
3
‑
1004
or a power of attorney, a custodian shall disclose to an agent a catalogue of electronic communications sent or received by the principal and digital assets
of the principal
, other than the content of
electronic
communications, if the agent
provides
the custodian
with the following
:

(
i
)

A request for disclosure in
written
or electronic form;

(ii)

An original or a copy of the power of attorney that gives the agent specific authority over digital assets
of the principal
or general authority to act on behalf of the principal;

(
iii
)

A
certification by the agent, under penalty of perjury, that the power of attorney is in

effect; and

(
iv
)

I
f
requested by the custodian:

(A)

A
number, username, address or other unique subscriber or account identifier

assigned by the custodian to identify the principal
'
s account; or

(B)

E
vidence linking the account to the principal.

2
‑
3
‑
1011
.

Disclosure of digital assets held in trust when trustee is original user.

Unless otherwise
directed by a court order
or a trust, a custodian shall disclose to a trustee
who
is an original user

of an account

of the trust
digital asset
s

of the account, including a

catalogue of electronic communications of the trustee and the content of electronic communications
sent or received by
the trustee
and carried, maintained, processed, received or stored by the custodian in the account
.

2
‑
3
‑
1012
.

Disclosure of
the
content of electronic communications held in trust when trustee not original user.

(a)

Unless otherwise
directed
by
a

court
order
,

a user

as specified in W.S. 2
‑
3
‑
1004
or
a
trust, a custodian shall disclose to a trustee
who
is not an original user

of
an account

of the trust
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 if the trustee
provides
the custodian
with the following
:

(
i
)

A
request for disclosure in
written
or electronic form;

(
ii
)

A
certification o
r

affidavit of trust as provided in W.S. 4
‑
10
‑
1014
that includes consent to disclosure of the content

of electronic communications to the trustee;

(
iii
)

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

(
iv
)

I
f
requested by the custodian:

(A)

A
number, username, address or other unique subscriber or account identifier

assigned by the custodian to identify the trust
'
s account; or

(B)

E
vidence linking the account to the trust.

2
‑
3
‑
1013
.

Disclosure of other digital assets held in trust when trustee not original user.

(a)

Unless otherwise
directed by a court order
,

a
user
as specified in W.S. 2
‑
3
‑
1004
or a trust, a custodian shall disclose to a trustee
who
is not an original user

of an account
of a trust
a

catalogue of electronic communications sent or received by an original or successor user and
carried, maintained, processed, received or stored
by the

custodian in
the
account and digital assets
in which
the trust has a right or interest
, other than the content of electronic communications,

if the trustee
provides
the custodian
with the following
:

(
i
)

A
request for disclosure in
written
or electronic form;

(
ii
)

A certification or affidavit of trust as provided in W.S. 4
‑
10
‑
1014 that includes consent to disclosure of the content of electronic communications to the trustee
;

(
iii
)

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

(
iv
)

I
f
requested by the custodian:

(A)

A
number, username, address or other unique subscriber or account identifier

assigned by the custodian to identify the trust
'
s account; or

(B)

E
vidence linking the account to the trust.

2
‑
3
‑
1014
.

Disclosure of digital assets to conservator o
f
a
ward
.

(
a)

After an opportunity for a hearing under
title 3, chapter 2 of the Wyoming statutes
, the court may grant a conservator access to the

digital assets

of a
ward
.

(b)

Unless otherwise
directed by a court order
or
a
user
as specified in W.S. 2
‑
3
‑
1004
, a custodian shall disclose to a conservator

the catalogue of electronic communications sent or received by a
ward
and digital assets
in which the ward has a right or interest
, other
than the content of electronic communications,

if the conservator
provides
the custodian
with the following
:

(
i
)

A
request for disclosure in
written
or electronic form;

(
ii
)

A
certified

copy of the court order that gives the conservator authority over the digital assets

of the
ward
; and

(
iii
)

I
f requested by the custodian:

(A)

A
number, username, address or other unique subscriber or account identifier

assigned by the custodian to identify the account

of the
ward
; or

(B)

E
vidence linking the account to the
ward
.

(c)

A conservator with general authority to manage the assets of a
ward
may request a custodian of the digital assets

of the
ward
to suspend or terminate an account of the
ward
for good cause. A request made under this
sub
section
shall

be accompanied by a certified

copy of the court order
that
giv
es
the conservator authority over the
ward
'
s property.

2
‑
3
‑
1015
.

Fiduciary duty and authority.

(
a)

The legal duties imposed on a fiduciary charged with managing tangible
, personal
property
of a decedent, ward, principal or settlor
apply to the management of digital assets, including
t
he duty of care
,
loyalty and

confidentiality.

(b)

A fiduciary
'
s
or designated recipient's
authority with respect to digital asset
s
of a user:

(
i
)

Unless otherwise directed by a user as specified
in
W.S. 2
‑
3
‑
1004
, is subject to the applicable terms

of

service
agreement
;

(
ii
)

I
s
subject to other applicable law
;

(
iii
)

I
n the case of a fiduciary, i
s limited by the scope of the fiduciary
'
s duties; and

(
iv
)

Shall
not be used to impersonate the user.

(c)

A fiduciary with authority over the
tangible, personal
property of a decedent,
ward
, principal or settlor has the right to access digital asset
s
in which the decedent,
ward
, principal or settlor had a right or interest
and which are not
carried, maintained, processed, received or stored
by a
custodian or subject
to a terms

of

service agreement.

(d)

A fiduciary acting within the scope of the fiduciary
'
s duties is an authorized user of the
tangible, personal
property of the decedent,
ward
, principal or settlor for the purpose of applicable
computer fraud and unauthorized
computer

access laws, including
W.S. 40
‑
25
‑
101.

(e)

A fiduciary with authority over the tangible, personal property of a decedent,
ward
, principal or settlor:

(
i
)

H
as the right to access the property and any digital asset stored in
the property
; and

(
ii
)

I
s an authorized user for the purpose

of computer

fraud and
unauthorized
computer

access laws, including
W.S. 40
‑
25
‑
101
.

(f)

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)

A fiduciary of a user may request a custodian to terminate the

user
'
s account. A request for termination
under this subsection
shall
be in writing

or electronic form and accompanied by:

(
i
)

A
copy of the death certificate of the user
if the user is deceased
;

(
ii)

A certified copy of the court order appointing the personal representative or
a certified copy of the
court order, power of attorney
,
trust
or other authorization
giving the fiduciary authority over the account; and

(
iii
)

I
f requested by the custodian:

(A)

A
number, username, address or other unique subscriber or account identifier

assigned by the custodian to identify the user
'
s account;

(B)

E
vidence

linking the account to the user; or

(C)

A
finding by

a

circuit court or other court of competent jurisdiction
that the user had a specific account with the custodian identifiable by the information specified in subparagraph

(A)
of this
paragraph
.

2
‑
3
‑
1016
.

Custodian compliance and immunity.

(a)

Not later than
sixty (
60
)
days after receipt

of the information required under
W.S. 2
‑
3
‑
1007
through
2
‑
3
‑
101
5
, a

custodian shall comply with a request

f
rom a fiduciary or designated recipient
under this act
to disclose digital assets or terminate an account. If the custodian fails to comply, the fiduciary

or designated representative

may apply to the
circuit court or other court of competent jurisdiction
for an order directing compliance.

(b)

An order under subsection (a)
of this section
directing compliance
shall
contain a finding that compliance is not in violation of
s
ection 2702
of title 18 of the United States Code,
as amended.

(c)

A custodian may notify the

user that a request for disclosure
of digital assets
or to terminate an account was made under

this act.

(d)

A custodian may deny a request from a fiduciary or designated representative
under this act to
disclos
e
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
or personal representative
'
s
request.

(e)

This act does not limit a custodian
'
s ability to obtain or require a fiduciary or designated representative requesting disclosure
of digital assets
or termination
of an account
under this act to obtain a court order
that
:

(
i
)

S
pecifies

the

account belongs to the
ward
or principal;

(
ii
)

S
pecifies there is sufficient consent from the
ward
or principal to support the requested disclosure; and

(
iii
)

C
ontains a

finding required by law
in addition to any finding required under this
act.

(f)

A custodian and
any
officers, employees
or
agents
of the custodian
are immune from liability for an act or omission done in good faith
to
compl
y
with
the provisions of this
act.

2
‑
3
‑
1017
.

Relation to Electronic Signatures in Global and National Commerce Act.

This act modifies, limits or supersedes the Electronic Signatures in Global and National Commerce Act,
s
ection

7001 et seq.
of title 15 of the United States Code
,
as amended,
but does not modify, limit or supersede
s
ection
7001(c)
of
title 15 of the United States Code
, as amended,

or authorize electronic delivery of any of the notices described in
s
ection

7003(b)
of title 15 of the United States Code
, as amended
.

Section 2
.

W.S. 2
‑
1
‑
301(
a)
(intro)
and 5
‑
9
‑
128 by creating a new subsection (e) are amended to read:

2
‑
1
‑
301
.

Generally
.

(a)

When used in this code, unless otherwise
defined or
required by the context, the following words and phrases shall be construed as follows:

5
‑
9
‑
128
.

Civil jurisdiction
.

(e)

The circuit court shall have jurisdiction to enforce and make findings under the Uniform Fiduciary Access to Digital Assets Act, W.S. 2
‑
3
‑
1001 through 2
‑
3
‑
1017. This jurisdiction shall include the authority to make necessary findings concerning compliance with federal
law as required by the Uniform Fiduciary Access to Digital Assets Act.

Section

3
.

This
act is effective July 1,
201
6
.

(END)

Speaker of the House

President of the Senate

Governor

TIME APPROVED: _________

DATE APPROVED: _________

I hereby certify that this act originated in the Senate.

Chief Clerk

1