Bill Text: IA SF333 | 2017-2018 | 87th General Assembly | Enrolled

Iowa Senate Bill 333 (Prior Session Legislation)

Bill Title: A bill for an act relating to a fiduciary’s access to digital assets and including applicability provisions. (Formerly SSB 1086.) Effective 7-1-17.

Spectrum: Committee Bill

Status: (Passed) 2017-04-20 - Signed by Governor. S.J. 1113. [SF333 Detail]

Download: Iowa-2017-SF333-Enrolled.html

Senate File 333 - Enrolled

SENATE FILE
BY COMMITTEE ON JUDICIARY

(SUCCESSOR TO SSB
1086)
\5
A BILL FOR
\1
Senate File 333

AN ACT
RELATING TO A FIDUCIARY'S ACCESS TO DIGITAL ASSETS AND
INCLUDING APPLICABILITY PROVISIONS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
Section 1. NEW SECTION. 633.90 Power of a fiduciary to
access digital assets.
Except as modified by a court order or limited in the
instrument creating the fiduciary relationship, a fiduciary may
exercise all rights and powers granted to such fiduciary under
chapter 638.
Sec. 2. Section 633A.4402, Code 2017, is amended by adding
the following new subsection:
NEW SUBSECTION. 33. Exercise all rights and powers granted
to a trustee under chapter 638.
Sec. 3. Section 633B.201, subsection 1, Code 2017, is
amended by adding the following new paragraph:
NEW PARAGRAPH. i. Exercise all rights and powers granted
to an agent under chapter 638.
Sec. 4. NEW SECTION. 638.1 Short title.
This chapter may be cited as the "Iowa Uniform Fiduciary
Access to Digital Assets Act".
Sec. 5. NEW SECTION. 638.2 Definitions.
As used in this chapter, unless the context otherwise
requires:
1. "Account" means an arrangement under a terms=of=service
agreement in which a custodian carries, maintains, processes,
receives, or stores a digital asset of the user or provides
goods or services to the user.
2. "Agent" means an attorney=in=fact granted authority under
a durable or nondurable power of attorney under chapter 633B.
3. "Carries" means engages in the transmission of an
electronic communication.
4. "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.
5. "Conservator" means the same as defined in section
633.3. "Conservator" includes a person appointed to have the
custody and control of the property of a ward in a limited
conservatorship unless otherwise provided by order of the
court.
6. "Content of an electronic communication" means information
concerning the substance or meaning of the communication to
which all of the following apply:
a. The communication has been sent or received by a user.
b. The communication 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.
c. The communication is not readily accessible to the
public.
7. "Court" means a district court in this state.
8. "Custodian" means a person that carries, maintains,
processes, receives, or stores a digital asset of a user.
9. "Designated recipient" means a person chosen by a user
using an online tool to administer digital assets of the user.
10. "Digital asset" means an electronic record in which an
individual 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. "Digital asset" does
not include health information or individually identifiable
health information as those terms are defined in the federal
Health Insurance Portability and Accountability Act of 1996,
Pub. L. No. 104=191.
11. "Electronic" means relating to technology having
electrical, digital, magnetic, wireless, optical,
electromagnetic, or similar capabilities.
12. "Electronic communication" has the meaning set forth in
18 U.S.C. {2510(12).
13. "Electronic=communication service" means a custodian
that provides to a user the ability to send or receive an
electronic communication.
14. "Fiduciary" means a personal representative,
conservator, guardian, agent, or trustee.
15. "Guardian" means the same as defined in section 633.3.
"Guardian" includes a person appointed to have the custody and
care of the person of the ward in a limited guardianship unless
otherwise provided by order of the court.
16. "Information" means data, text, images, videos, sounds,
codes, computer programs, software, databases, or the like.
17. "Online tool" means an electronic service provided by
a custodian that allows the user, in an agreement distinct
from the terms=of=service agreement between the custodian and
user, to provide directions for disclosure or nondisclosure of
digital assets to a third person.
18. "Person" means an individual, estate, business
or nonprofit entity, public corporation, government or
governmental subdivision, agency, instrumentality, or other
legal entity.
19. "Personal representative" means the same as defined in
section 633.3.
20. "Power of attorney" means the same as defined in section
633B.102.
21. "Principal" means the same as defined in section
633B.102.
22. "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.
23. "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 18 U.S.C. {2510(14).
24. "Terms=of=service agreement" means an agreement that
controls the relationship between a user and a custodian.
25. "Trustee" means the same as defined in section 633.3 or
633A.1102.
26. "User" means a person that has an account with a
custodian.
27. "Ward" means an individual for whom a conservator or
guardian has been appointed. "Ward" includes an individual
for whom an application for the appointment of a conservator
or guardian is pending and for which a court order authorizing
access under this chapter has been granted.
28. "Will" means the same as defined in section 633.3.
Sec. 6. NEW SECTION. 638.3 Applicability.
1. This chapter 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.
c. A conservator or guardian acting for a ward on 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 chapter applies to a custodian if the user resides
in this state or resided in this state at the time of the user's
death.
3. This chapter does not apply to a digital asset of an
employer used by an employee in the ordinary course of the
employer's business.
Sec. 7. NEW SECTION. 638.4 User direction for disclosure
of digital assets.
1. A user may use an online tool to direct the custodian to
disclose to the designated recipient or not to disclose some
or all of the user's digital assets, including the content
of electronic communications. If the online tool allows the
user to modify or delete a direction at any time, 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 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
content 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.
Sec. 8. NEW SECTION. 638.5 Terms=of=service agreement.
1. This chapter does not change or impair a right of a
custodian or a user under a terms=of=service agreement to
access and use digital assets of the user.
2. This chapter does not give a fiduciary or a designated
recipient any new or expanded rights other than those held by
the user for whom, or for whose estate, the fiduciary or a
designated recipient acts or 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 638.4.
Sec. 9. NEW SECTION. 638.6 Procedure for disclosing digital
assets.
1. When disclosing digital assets of a user under this
chapter, the 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.
c. 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, was competent, and had access
to the account.
2. A custodian may assess a reasonable administrative
charge for the cost of disclosing digital assets under this
chapter.
3. A custodian need not disclose under this chapter a
digital asset deleted by a user.
4. If a user directs or a fiduciary requests a custodian to
disclose some, but not all, of the user's digital assets, the
custodian need not disclose the assets if segregation of the
assets would impose an undue burden on the custodian. If the
custodian believes the direction or request imposes an undue
burden, the custodian or fiduciary may seek an order from the
court to disclose any of the following:
a. A subset of the user's digital assets limited by date.
b. All of the user's digital assets to the fiduciary or
designated recipient.
c. None of the user's digital assets.
d. All of the user's digital assets to the court for review
in camera.
Sec. 10. NEW SECTION. 638.7 Disclosure of content of
electronic communications of deceased user.
If a deceased user consented or a court directs disclosure
of the contents of electronic communications of the user, the
custodian shall disclose to the personal representative of the
estate of the user the content of an electronic communication
sent or received by the user if the personal representative
gives the custodian all of the following:
1. A written request for disclosure in physical or
electronic form.
2. A certified copy of the death certificate of the user.
3. A certified copy of the letters of appointment of the
personal representative, an original affidavit made pursuant
to section 633.356, or a file=stamped copy of the court order
authorizing the personal representative to administer the
user's estate.
4. 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
content of electronic communications.
5. If requested by the custodian, any of the following:
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. A finding by the court of any of the following:
(1) The user had a specific account with the custodian,
identifiable by the information specified in paragraph "a".
(2) Disclosure of the content of electronic communications
of the user would not violate 18 U.S.C. {2701 et seq., 47
U.S.C. {222, or other applicable law.
(3) Unless the user provided direction using an online
tool, that the user consented to disclosure of the content of
electronic communications.
(4) Disclosure of the content of electronic communications
of the user is reasonably necessary for administration of the
estate.
Sec. 11. NEW SECTION. 638.8 Disclosure of other digital
assets of deceased user.
Unless the user prohibited disclosure of digital assets or
the court directs otherwise, 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, other than the content of electronic
communications, of the user, if the personal representative
gives the custodian all of the following:
1. A written request for disclosure in physical or
electronic form.
2. A certified copy of the death certificate of the user.
3. A certified copy of the letters of appointment of the
personal representative, an original affidavit made pursuant
to section 633.356, or a file=stamped copy of the court order
authorizing the personal representative to administer the
user's estate.
4. If requested by the custodian, any of the following:
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.
d. A finding by the court of any of the following:
(1) The user had a specific account with the custodian,
identifiable by the information specified in paragraph "a".
(2) Disclosure of the user's digital assets is reasonably
necessary for administration of the estate.
Sec. 12. NEW SECTION. 638.9 Disclosure of content of
electronic communications of principal.
To the extent a power of attorney expressly 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 custodian shall disclose to the
agent the content if the agent gives the custodian all of the
following:
1. A written request for disclosure in physical or
electronic form.
2. An original or copy of the power of attorney expressly
granting the agent authority over the content of electronic
communications of the principal.
3. A certification by the agent, under penalty of perjury,
that the power of attorney is in effect. The certification
form provided in section 633B.302 shall satisfy the requirement
of this subsection.
4. If requested by the custodian, any of the following:
a. A number, username, address, or other unique subscriber
or account identifier assigned by the custodian to identify the
principal's account.
b. Evidence linking the account to the principal.
Sec. 13. NEW SECTION. 638.10 Disclosure of other digital
assets of principal.
Unless otherwise ordered by the court, directed by the
principal, or provided by a power of attorney, a 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 digital assets, other than the content of
electronic communications, of the principal if the agent gives
the custodian all of the following:
1. A written request for disclosure in physical or
electronic form.
2. An original or a copy of the power of attorney that gives
the agent specific authority over digital assets or general
authority to act on behalf of the principal.
3. A certification by the agent, under penalty of perjury,
that the power of attorney is in effect.
4. If requested by the custodian, any of the following:
a. A number, username, address, or other unique subscriber
or account identifier assigned by the custodian to identify the
principal's account.
b. Evidence linking the account to the principal.
Sec. 14. NEW SECTION. 638.11 Disclosure of digital assets
held in trust when trustee is original user.
Unless otherwise ordered by the court or provided in a trust,
a custodian shall disclose to a trustee that is an original
user of an account any digital asset of the account held in
trust, including a catalogue of electronic communications of
the trustee and the content of electronic communications.
Sec. 15. NEW SECTION. 638.12 Disclosure of contents of
electronic communications held in trust when trustee not original
user.
Unless otherwise ordered by the court, directed by the user,
or provided in a trust, a 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 custodian in the account of the trust if the
trustee gives the custodian all of the following:
1. A written request for disclosure in physical or
electronic form.
2. A certified copy of the trust instrument or a
certification of trust under section 633A.4604 that
includes consent to disclosure of the content of electronic
communications to the trustee.
3. A certification by the trustee, under penalty of perjury,
that the trust exists and the trustee is a currently acting
trustee of the trust.
4. If requested by the custodian, any of the following:
a. A number, username, address, or other unique subscriber
or account identifier assigned by the custodian to identify the
trust's account.
b. Evidence linking the account to the trust.
Sec. 16. NEW SECTION. 638.13 Disclosure of other digital
assets held in trust when trustee not original user.
Unless otherwise ordered by the court, directed by the
user, or provided in a trust, a 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
custodian in an 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
custodian all of the following:
1. A written request for disclosure in physical or
electronic form.
2. A certified copy of the trust instrument or a
certification of trust under section 633A.4604.
3. A certification by the trustee, under penalty of perjury,
that the trust exists and the trustee is a currently acting
trustee of the trust.
4. If requested by the custodian, any of the following:
a. A number, username, address, or other unique subscriber
or account identifier assigned by the custodian to identify the
trust's account.
b. Evidence linking the account to the trust.
Sec. 17. NEW SECTION. 638.14 Disclosure of digital assets
to conservator or guardian of a ward.
1. After an opportunity for a hearing to all interested
parties, the court may grant a conservator or guardian access
to the digital assets of a ward.
2. Unless otherwise ordered by the court or directed by the
user, a custodian shall disclose to a conservator or guardian
the catalogue of electronic communications sent or received
by a ward and any digital assets, other than the content of
electronic communications, in which the ward has a right or
interest if the conservator or guardian gives the custodian all
of the following:
a. A written request for disclosure in physical or
electronic form.
b. A file=stamped copy of the court order that gives the
conservator or guardian authority over the digital assets of
the ward.
c. If requested by the custodian, any of the following:
(1) A number, username, address, or other unique subscriber
or account identifier assigned by the custodian to identify the
account of the ward.
(2) Evidence linking the account to the ward.
3. If the conservatorship or guardianship is not limited,
the conservator or guardian 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 section
must be accompanied by a file=stamped copy of the court order
establishing the conservatorship or guardianship.
Sec. 18. NEW SECTION. 638.15 Fiduciary duty and authority.
1. The legal duties imposed on a fiduciary charged with
managing tangible property apply to the management of digital
assets, including all of the following:
a. The duty of care.
b. The duty of loyalty.
c. The duty of confidentiality.
2. All of the following apply to a fiduciary's or a
designated recipient's authority with respect to a digital
asset of a user:
a. Except as otherwise provided in section 638.4, the
fiduciary's or designated recipient's authority is subject to
the applicable terms of service.
b. The fiduciary's or designated recipient's authority is
subject to other applicable law, including copyright law.
c. In the case of a fiduciary, the fiduciary's authority is
limited by the scope of the fiduciary's duties.
d. The fiduciary's or designated recipient's authority shall
not be used to impersonate the user.
3. A fiduciary with authority over the property of a
decedent, ward, principal, or settlor has the right to access
any digital asset in which the decedent, ward, principal, or
settlor had a right or interest and that is not held by a
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,
ward, principal, or settlor for the purpose of applicable
computer=fraud and unauthorized=computer=access laws, including
section 716.6B.
5. A fiduciary with authority over the tangible, personal
property of a decedent, ward, principal, or settlor possesses
all of the following authority:
a. Has the right to access the property and any digital
asset stored in the property.
b. Is an authorized user for the purpose of computer=fraud
and unauthorized=computer=access laws, including section
716.6B.
6. 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.
7. A fiduciary of a user may request a 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 certified copy of the death
certificate of the user.
b. A certified copy of the letters of appointment of the
personal representative, an original affidavit made pursuant
to section 633.356, a file=stamped copy of the court order
authorizing the personal representative to administer the
user's estate, power of attorney, or trust, including a
certification of trust, giving the fiduciary authority over the
account.
c. If requested by the custodian, any of the following:
(1) A number, username, address, or other unique subscriber
or account identifier assigned by the custodian to identify the
user's account.
(2) Evidence linking the account to the user.
(3) A finding by the court that the user had a specific
account with the custodian, identifiable by the information
specified in subparagraph (1).
Sec. 19. NEW SECTION. 638.16 Custodian compliance and
immunity.
1. Not later than sixty days after receipt of the
information required under sections 638.7 through 638.15, a
custodian shall comply with a request under this chapter from a
fiduciary or designated recipient to disclose digital assets or
terminate an account. If the custodian fails to comply, the
fiduciary or designated recipient may 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
U.S.C. {2702.
3. A custodian may notify the user that a request for
disclosure or to terminate an account was made under this
chapter.
4. A custodian may deny a request under this chapter from
a fiduciary or designated recipient for disclosure of 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 request.
5. This chapter does not limit a custodian's ability
to obtain or require a fiduciary or designated recipient
requesting disclosure or termination under this chapter to
obtain a court order which finds all of the following:
a. That the account belongs to the user.
b. That there is sufficient consent from the user to support
the requested disclosure.
c. Any specific factual finding required by any applicable
law other than this chapter.
6. A custodian and the custodian's officers, employees, and
agents are immune from liability for an act or omission done in
good faith in compliance with this chapter.
Sec. 20. NEW SECTION. 638.17 Uniformity of application and
construction.
In applying and construing this chapter, consideration must
be given to the need to promote uniformity of the law with
respect to this chapter's subject matter among states that
enact the revised uniform fiduciary access to digital assets
Act.
Sec. 21. NEW SECTION. 638.18 Relation to Electronic
Signatures in Global and National Commerce Act.
This chapter modifies, limits, or supersedes the federal
Electronic Signatures in Global and National Commerce Act, 15
U.S.C. {7001 et seq., but does not modify, limit, or supersede
section 101(c) of that Act, 15 U.S.C. {7001(c), or authorize
electronic delivery of any of the notices described in section
103(b) of that Act, 15 U.S.C. {7003(b).

JACK WHITVER

LINDA UPMEYER

W. CHARLES SMITH

TERRY E. BRANSTA

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