HB-5034, As Passed House, March 22, 2016HB-5034, As Passed Senate, March 17, 2016

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 5034

A bill to provide for fiduciary access to digital assets; and

to provide for the powers and procedures of the court that has

jurisdiction over these matters.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 1. This act shall be known and may be cited as the

"fiduciary access to digital assets act".

Sec. 2. As used in this act:

(a) "Account" means an arrangement under a terms-of-service

agreement in which the digital custodian carries, maintains,

processes, receives, or stores a digital asset of the user or

provides goods or services to the user.

(b) "Agent" means an attorney-in-fact granted authority under

a durable or nondurable power of attorney.

electronic communication.

(d) "Catalogue of electronic communications" means information

that identifies each person with which a user has had an electronic

communication, the time and date of the communication, and the

electronic address of the person.

(e) "Conservator" means a person that is appointed by a court

to manage all or part of the estate of a protected person.

Conservator includes, but is not limited to, any of the following:

(i) A conservator as that term is defined in section 1103 of

the estates and protected individuals code, 1998 PA 386, MCL

700.1103.

(ii) A plenary guardian as that term is defined in section 600

of the mental health code, 1974 PA 258, MCL 330.1600.

(iii) A partial guardian as that term is defined in section

600 of the mental health code, 1974 PA 258, MCL 330.1600.

(iv) A special fiduciary appointed to take possession of and

administer a protected person's property.

(v) A special conservator appointed under section 5408 of the

estates and protected individuals code, 1998 PA 386, MCL 700.5408.

(vi) A guardian if no conservator has been appointed.

(f) "Content of an electronic communication" means information

concerning the substance or meaning of an electronic communication

to which all of the following apply:

(i) The information has been sent or received by a user.

(ii) The information is in electronic storage by a digital

custodian providing an electronic communication service to the

public or is carried or maintained by a digital custodian providing

a remote-computing service to the public.

(iii) The information is not readily accessible to the public.

(g) "Court" means the probate court or, when applicable, the

circuit court.

(h) "Designated recipient" means a person chosen by a user

using an online tool to administer digital assets of the user.

(i) "Developmental disability" means that term as defined in

section 100a of the mental health code, 1974 PA 258, MCL 330.1100a.

(j) "Digital asset" means an electronic record in which a user

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.

(k) "Digital custodian" means a person that carries,

maintains, processes, receives, or stores a digital asset of a

user.

(l) "Electronic" means relating to technology having

electrical, digital, magnetic, wireless, optical, electromagnetic,

or similar capabilities.

(m) "Electronic communication" means that term as defined in

18 USC 2510.

(n) "Electronic communication service" means a digital

custodian that provides to a user the ability to send or receive an

electronic communication.

(o) "Electronic communication system" means that term as

defined in 18 USC 2510.

(p) "Fiduciary" means a person who is an original, additional,

or successor personal representative, conservator, agent, or

trustee.

(q) "Guardian" means that term as defined in section 1104 of

the estates and protected individuals code, 1998 PA 386, MCL

700.1104.

(r) "Governing instrument" means a will, a trust, an

instrument creating a power of attorney, or other dispositive or

nominative instrument.

(s) "Information" means data, text, images, videos, sounds,

codes, computer programs, software, databases, or the like.

(t) "Interested person" or "person interested in an estate"

means those terms as defined in section 1105 of the estates and

protected individuals code, 1998 PA 386, MCL 700.1105.

(u) "Legally incapacitated individual" means that term as

defined in section 1105 of the estates and protected individuals

code, 1998 PA 386, MCL 700.1105.

(v) "Letters" means that term as described in section 1105 of

the estates and protected individuals code, 1998 PA 386, MCL

700.1105.

(w) "Minor" means that term as defined in section 1106 of the

estates and protected individuals code, 1998 PA 386, MCL 700.1106.

(x) "Online tool" means an electronic service provided by a

digital custodian that allows the user, in an agreement distinct

from the terms-of-service agreement between the digital custodian

and user, to provide directions for disclosure or nondisclosure of

digital assets to a third person.

(y) "Person" means that term as defined in section 1106 of the

estates and protected individuals code, 1998 PA 386, MCL 700.1106.

(z) "Personal representative" means that term as defined in

section 1106 of the estates and protected individuals code, 1998 PA

386, MCL 700.1106. Personal representative also includes a special

fiduciary appointed to take possession of and administer the

property of a decedent's estate.

(aa) "Power of attorney" means a record that grants an agent

authority to act in the place of a principal.

(bb) "Principal" means a person that grants authority to an

agent in a power of attorney.

(cc) "Proceeding" means that term as defined in section 1106

of the estates and protected individuals code, 1998 PA 386, MCL

700.1106.

(dd) "Protected individual" means that term as defined in

section 1106 of the estates and protected individuals code, 1998 PA

386, MCL 700.1106.

(ee) "Protected person" includes any of the following:

(i) A protected individual.

(ii) A legally incapacitated individual.

(iii) A minor for whom a guardian has been appointed but no

conservator has been appointed.

(iv) An individual who has a developmental disability.

(ff) "Record" means information that is inscribed on a

tangible medium or that is stored in an electronic or other medium

and is retrievable in perceivable form.

(gg) "Remote-computing service" means a digital custodian that

provides to a user computer processing services or the storage of

digital assets by means of an electronic communications system.

(hh) "Settlor" means that term as defined in section 7103 of

the estates and protected individuals code, 1998 PA 386, MCL

700.7103.

(ii) "Special fiduciary" means a special fiduciary appointed

by the court under sections 1308, 1309, 7704, 7815, and 7901 of the

estates and protected individuals code, 1998 PA 386, MCL 700.1308,

700.1309, 700.7704, 700.7815, and 700.7901.

(jj) "Terms-of-service agreement" means an agreement that

controls the relationship between a user and a digital custodian.

(kk) "Trust" means that term as defined in section 1107 of the

estates and protected individuals code, 1998 PA 386, MCL 700.1107.

(ll) "Trustee" means that term as defined in section 1107 of

the estates and protected individuals code, 1998 PA 386, MCL

700.1107. Trustee also includes a special fiduciary that controls

all or part of a trust.

(mm) "User" means a person that has an account with a digital

custodian.

(nn) "Will" means that term as defined in section 1108 of the

estates and protected individuals code, 1998 PA 386, MCL 700.1108.

Sec. 3. (1) Subject to subsections (2), (3), and (4), this act

applies to all of the following:

(a) A fiduciary acting under a will or power of attorney

executed before, on, or after the effective date of this act.

(b) A personal representative acting for a decedent who died

before, on, or after the effective date of this act.

or after the effective date of this act.

(d) A trustee acting under a trust created before, on, or

after the effective date of this act.

(2) This act applies to a digital custodian if the user

resides in this state or resided in this state at the time of the

user's death.

(3) This act does not impair an accrued right or an action

taken in a proceeding before the effective date of this act.

(4) This act does not apply to a digital asset of an employer

used by an employee in the ordinary course of business.

Sec. 4. (1) A user may use an online tool to direct the

digital custodian to disclose or not to disclose to a designated

recipient some or all of the user's digital assets, including the

contents of electronic communications. If the online tool allows

the user to modify or delete a direction at all times, a direction

regarding disclosure using an online tool overrides a contrary

direction by the user in a will, trust, power of attorney, or other

record.

(2) If a user has not used an online tool to give direction

under subsection (1) or if the digital custodian has not provided

an online tool, the user may allow or prohibit in a will, trust,

power of attorney, or other record disclosure to a fiduciary of

some or all of the user's digital assets, including the contents of

electronic communications sent or received by the user.

(3) A user's direction under subsection (1) or (2) overrides a

contrary provision in a terms-of-service agreement that does not

require the user to act affirmatively and distinctly from the

user's assent to the terms-of-service agreement.

Sec. 5. (1) This act does not change or impair a right of a

digital custodian or a user under a terms-of-service agreement to

access and use digital assets of the user.

(2) This act does not give a fiduciary or designated recipient

any new or expanded rights other than those held by the user for

whom, or for whose estate, the fiduciary or designated recipient

acts or who the fiduciary or designated recipient represents.

(3) A fiduciary's or designated recipient's access to digital

assets may be modified or eliminated by a user, by federal law, or

by a terms-of-service agreement if the user has not provided

direction under section 4.

Sec. 6. (1) When disclosing the digital assets of a user under

this act, the digital custodian may at its sole discretion do any

of the following:

(a) Grant a fiduciary or designated recipient full access to

the user's account.

(b) Grant 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.

record of any digital asset that, on the date the digital 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.

(2) A digital custodian may assess a reasonable administrative

charge for the cost of disclosing digital assets under this act.

(3) A digital custodian is not required to disclose under this

act a digital asset deleted by a user.

(4) If a user directs or a fiduciary requests a digital

custodian to disclose under this act some, but not all, of the

user's digital assets, the digital custodian is not required to

disclose the requested digital assets if segregation of the

requested digital assets would impose an undue burden on the

digital custodian. If the digital custodian believes the direction

or request imposes an undue burden, the digital custodian or

fiduciary may seek an order from the court to disclose any of the

following:

(a) A subset limited by date of the user's digital assets.

(b) All of the user's digital assets to the fiduciary or

designated recipient.

(d) All of the user's digital assets to the court for review

in camera.

Sec. 7. If a deceased user consented to or a court directs

disclosure of the contents of electronic communications of the

user, a digital custodian shall disclose to the personal

representative of the user the content of an electronic

communication sent or received by the user if the personal

representative gives the digital custodian all of the following:

(a) A written request for disclosure in physical or electronic

form.

(b) A copy of the death certificate of the user.

personal representative, a small-estate affidavit, or other court

order.

(d) Unless the user provided direction using an online tool, a

copy of the user's will, trust, power of attorney, or other record

evidencing the user's consent to disclosure of the contents of

electronic communications.

(e) If requested by the digital custodian, any of the

following:

(i) A number, username, address, or other unique subscriber or

account identifier assigned by the digital custodian to identify

the user's account.

(ii) Evidence linking the account to the user.

(iii) A finding by the court that:

(A) The user had a specific account with the digital

custodian, identifiable by the information specified in

subparagraph (i).

(B) Disclosure of the content of electronic communications of

the user would not violate 18 USC 2701 to 2707, 47 USC 222, or

other applicable law.

the user consented to disclosure of the contents of electronic

communications.

(D) Disclosure of the contents of electronic communications of

the user is reasonably necessary for administration of the estate.

Sec. 8. Unless the user prohibited disclosure of digital

assets or the court directs otherwise, a digital 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, other than the content of electronic

communications, of the user if the personal representative gives

the digital custodian all of the following:

(a) A written request for disclosure in physical or electronic

form.

(b) A copy of the death certificate of the user.

personal representative, a small-estate affidavit, or a court

order.

(d) If requested by the digital custodian, any of the

following:

(i) A number, username, address, or other unique subscriber or

account identifier assigned by the digital custodian to identify

the user's account.

(ii) Evidence linking the account to the user.

(iii) An affidavit stating that disclosure of the user's

digital assets is reasonably necessary for administration of the

estate.

(iv) A finding of the court that:

(A) The user had a specific account with the digital

custodian, identifiable by the information specified in

subparagraph (i).

(B) Disclosure of the contents of electronic communications of

a user is reasonably necessary for administration of the estate.

Sec. 9. To the extent a power of attorney grants an agent

authority over the content of electronic communications sent or

received by the principal and unless directed otherwise by the

principal or the court, a digital custodian shall disclose to the

agent the content of electronic communication if the agent gives

the digital custodian all of the following:

(a) A written request for disclosure in physical or electronic

form.

(b) An original or copy of the power of attorney granting the

agent the authority over the content of electronic communications

of the principal.

estates and protected individuals code, 1998 PA 386, MCL 700.5505.

(d) If requested by the digital custodian, any of the

following:

(i) A number, username, address, or other unique subscriber or

account identifier assigned by the digital custodian to identify

the principal's account.

(ii) Evidence linking the account to the principal.

Sec. 10. Unless otherwise ordered by the court, directed by

the principal, or provided by a power of attorney, a digital

custodian shall disclose to an agent with specific authority over

digital assets or general authority to act on behalf of a principal

a catalogue of electronic communications sent or received by the

principal and any digital assets, other than the content of

electronic communications, of the principal if the agent gives to

the digital custodian all of the following:

(a) A written request for disclosure in physical or electronic

form.

(b) An original or a copy of the power of attorney that gives

the agent authority over digital assets or general authority to act

on behalf of the principal.

estates and protected individuals code, 1998 PA 386, MCL 700.5505.

(d) If requested by the digital custodian, any of the

following:

(i) A number, username, address, or other unique subscriber or

account identifier assigned by the digital custodian to identify

the principal's account.

(ii) Evidence linking the account to the principal.

Sec. 11. Unless otherwise ordered by the court or provided in

a trust, a digital custodian shall disclose to the trustee that is

an original user of an account any digital assets of the account

held in trust, including a catalogue of electronic communications

of the trustee and the content of electronic communications.

Sec. 12. Unless otherwise ordered by the court, directed by

the user, or provided in a trust, a digital custodian shall

disclose to a trustee that is not an original user of an account

the content of an electronic communication sent or received by an

original or successor user and carried, maintained, processed,

received, or stored by the digital custodian in the account of the

trust if the trustee gives to the digital custodian all of the

following:

(a) A written request for disclosure in physical or electronic

form.

(b) A certificate of the trust under section 7913 of the

estates and protected individuals code, 1998 PA 386, MCL 700.7913,

that includes consent to disclosure of the contents of electronic

communications to the trustee.

that the trust exists and that the trustee is a currently acting

trustee of the trust.

(d) If requested by the digital custodian, any of the

following:

(i) A number, username, address, or other unique subscriber or

account identifier assigned by the digital custodian to identify

the trust's account.

(ii) Evidence linking the account to the trust.

Sec. 13. Unless otherwise ordered by the court, directed by

the user, or provided in a trust, a digital custodian shall

disclose to a trustee that is not an original user of an account a

catalogue of electronic communications sent or received by an

original or successor user and stored, carried, or maintained by

the digital custodian in the account of the trust and any digital

assets, other than the content of electronic communications, in

which the trust has a right or interest if the trustee gives the

digital custodian all of the following:

(a) A written request for disclosure in physical or electronic

form.

(b) A certificate of the trust under section 7913 of the

estates and protected individuals code, 1998 PA 386, MCL 700.7913.

that the trust exists and that the trustee is a currently acting

trustee of the trust.

(d) If requested by the digital custodian, any of the

following:

(i) A number, username, address, or other unique subscriber or

account identifier assigned by the digital custodian to identify

the trust's account.

(ii) Evidence linking the account to the trust.

Sec. 14. (1) After an opportunity for a hearing, the court may

grant a conservator access to the digital assets of a protected

person.

(2) Unless otherwise ordered by the court or directed by the

user, a digital custodian shall disclose to a conservator the

catalogue of electronic communications sent or received by the

protected person and any digital asset, other than the content of

electronic communications, in which the protected person has a

right or interest if the conservator gives the digital custodian

all of the following:

(a) A written request for disclosure in physical or electronic

form.

(b) A certified copy of the court order that gives the

conservator authority over the digital assets of the protected

person.

following:

(i) A number, username, address, or other unique subscriber or

account identifier assigned by the digital custodian to identify

the account of the protected person.

(ii) Evidence linking the account to the protected person.

(3) A conservator may request a digital custodian of digital

assets of a protected person to suspend or terminate an account of

the protected person for good cause. A request made under this

subsection must be accompanied by a certified copy of the

conservator's letters of authority or other order appointing the

conservator.

Sec. 15. (1) The legal duties imposed on a fiduciary charged

with managing tangible personal property apply to the management of

digital assets, including all of the following:

(a) The duty of care.

(b) The duty of loyalty.

(2) All of the following apply to a fiduciary's or designated

recipient's authority with respect to a digital asset of a user:

(a) Except as otherwise provided in section 4, it is subject

to the applicable terms-of-service agreement.

(b) It is subject to other applicable laws, including

fiduciary's duties.

(d) It may not be used to impersonate the user.

(3) A fiduciary with authority over the property of a

decedent, protected person, principal, or settlor has the right to

access any digital asset in which the decedent, protected person,

principal, or settlor had a right or interest and that is not held

by a digital custodian or subject to a terms-of-service agreement.

(4) A fiduciary acting within the scope of the fiduciary's

duties is an authorized user of the property of the decedent,

protected person, principal, or settlor for the purpose of

applicable computer fraud and unauthorized computer access laws,

including, but not limited to, all of the following:

(a) Section 5 of 1979 PA 53, MCL 752.795.

(b) Section 540 of the Michigan penal code, 1931 PA 328, MCL

750.540.

750.157n, to the extent that the property is a financial

transaction device as that term is defined in section 157m of the

Michigan penal code, 1931 PA 328, MCL 750.157m.

(5) All of the following apply to a fiduciary with authority

over tangible personal property of a decedent, protected person,

principal, or settlor:

(a) The fiduciary has the right to access the property and any

digital asset stored in it.

(b) The fiduciary is an authorized user for the purposes of

computer fraud and unauthorized computer access laws, including,

but not limited to, all of the following:

(i) Section 5 of 1979 PA 53, MCL 752.795.

(ii) Section 540 of the Michigan penal code, 1931 PA 328, MCL

750.540.

(iii) Section 157n of the Michigan penal code, 1931 PA 328,

MCL 750.157n, to the extent that the tangible personal property is

a financial transaction device as that term is defined in section

157m of the Michigan penal code, 1931 PA 328, MCL 750.157m.

(6) A digital custodian may disclose information in an account

to a fiduciary of the user if the information is required to

terminate an account used to access digital assets licensed to the

user.

(7) A fiduciary of a user may request a digital custodian to

terminate the user's account. A request for termination must be in

writing, in either physical or electronic form, and accompanied by

all of the following:

(a) If the user is deceased, a copy of the death certificate

of the user.

(b) A certified copy of the letters of authority of the

personal representative, small-estate affidavit, or court order,

power of attorney, or trust giving the fiduciary authority over the

account.

following:

(i) A number, username, address, or other unique subscriber or

account identifier assigned by the digital custodian to identify

the user's account.

(ii) Evidence linking the account to the user.

(iii) A finding of the court that the user had a specific

account with the digital custodian, identifiable by the information

specified in subparagraph (i).

(8) A fiduciary is immune from liability for an action done in

good faith in compliance with this act.

Sec. 16. (1) Not later than 56 days after receipt of the

information required under sections 7 to 14, a digital custodian

shall comply with a request under this act from a fiduciary or

designated recipient to disclose digital assets or terminate an

account. If the digital custodian fails to comply, the fiduciary or

designated recipient may petition or otherwise apply to the court

for an order directing compliance.

(2) An order under subsection (1) directing compliance must

contain a finding that compliance is not in violation of 18 USC

2702.

(3) A digital custodian that receives a certificate of trust

under section 12 or 13 may require the trustee to provide copies of

excerpts from the original trust instrument and later amendments

that designate the trustee and, if the trustee is requesting

content of electronic communications, that includes consent to

disclosure of the contents of electronic communications to the

trustee.

(4) A digital custodian or other person that demands the trust

instrument in addition to a certificate of trust under section 12

or 13 or demands excerpts under subsection (3) is liable for

damages to the same extent the digital custodian or other person

would be liable under section 7913 of the estates and protected

individuals code, 1998 PA 386, MCL 700.7913.

(5) This act does not limit the right of a person to obtain a

copy of a trust instrument in a judicial proceeding concerning the

trust.

(6) A digital custodian may notify the user that a request for

disclosure or to terminate an account was made under this act.

(7) A digital custodian may deny a request under this act from

a fiduciary or designated recipient for disclosure or to terminate

an account if the digital custodian is aware of any lawful access

to the account following the receipt of the request.

(8) This act does not limit the digital custodian's ability to

obtain or to require a fiduciary or designated recipient requesting

disclosure or termination of an account under this act to obtain a

court order that does any of the following:

(a) Specifies that an account belongs to the protected person

or principal.

(b) Specifies that there is sufficient consent from the

protected person or principal to support the requested disclosure.

(9) A digital custodian and its officers, employees, and

agents are immune from liability for an action done in good faith

in compliance with this act.

Sec. 17. Notwithstanding section 7 or 8, an interested person

may file a petition in the court for an order to limit, eliminate,

or modify the personal representative's powers with respect to the

decedent's digital assets. On receipt of a petition under this

section, the court shall set a date for a hearing on the petition.

The hearing date must not be less than 14 days or more than 56 days

after the date the petition is filed, except for good cause.

Sec. 18. This act modifies, limits, or supersedes the

electronic signatures in the global and national commerce act, 15

USC 7001 to 7006, but does not modify, limit, or supersede 15 USC

7001(c) or authorize electronic delivery of any of the notices