SB 715

This bill adopts the Revised Uniform Fiduciary Access to Digital Assets Act, as

approved and recommended by the National Conference of Commissioners on

Uniform State Laws in July 2015. The bill provides default provisions related to a

fiduciary's right to access digital assets. Under the bill, a digital asset is an electronic

record in which an individual has a right or interest. Examples of digital assets

include information stored on a computer or other digital device, content uploaded

onto a Web site, text messages, and rights in domain names or rights associated with

online games. A fiduciary is a personal representative, guardian, conservator, agent

under a power of attorney, or trustee.

Terms of service agreement

Under the bill, a terms of service agreement is an agreement that controls the

relationship between a user and a custodian. A custodian is a person that carries,

maintains, processes, receives, or stores a user's digital assets.

This bill does not change or impair the rights of a custodian or a user under a

terms of service agreement to access and use digital assets. Nor does the bill give a

fiduciary any other rights than the rights held by the user for whom the fiduciary acts

or represents.

Three-tiered priority system

This bill creates the following three-tiered system to address contrary

directions regarding disclosure of digital assets to a fiduciary:

1. This bill gives first priority to a direction made by a user in a will, trust, power

of attorney, or other governing instrument.

2. If the user does not provide a direction in a will, trust, power of attorney, or

other governing instrument, the bill gives priority to a direction provided in an online

tool. Under the bill, an online tool is an electronic service provided by the custodian,

separate from the general terms of service, that allows a user to provide directions

relating to disclosure of the user's digital assets to a third person. A designated

recipient is a person chosen by the user using an online tool to administer digital

assets.

3. Finally, if the user does not provide a direction in a will, trust, power of

attorney, or other governing instrument or using an online tool, direction in the terms

of service governing the digital assets apply to the disclosure of the digital assets to

a fiduciary. If the terms of service do not address fiduciary access, the default rules

provided in this bill apply.

The three-tiered system established in this bill deviates from the Revised

UFADAA. Under the Revised UFADAA, a direction given in an online tool is given

the highest priority, followed by a direction given in a will, trust, power of attorney,

or other record. The final tier is same under the bill and the Revised UFADAA.

Disclosure of content of electronic communications

An electronic communication is a specific type of digital asset that is subject to