Bill Text: TX HB2183 | 2015-2016 | 84th Legislature | Introduced
Bill Title: Relating to the adoption of the Uniform Fiduciary Access to Digital Assets Act.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2015-03-17 - Referred to Judiciary & Civil Jurisprudence [HB2183 Detail]
Download: Texas-2015-HB2183-Introduced.html
84R6531 MTB-F | ||
By: Leach | H.B. No. 2183 |
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relating to the adoption of the Uniform Fiduciary Access to Digital | ||
Assets Act. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. The Estates Code is amended by adding Title 4 to | ||
read as follows: | ||
TITLE 4. DIGITAL ASSETS | ||
CHAPTER 2001. UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT | ||
Sec. 2001.001. SHORT TITLE. This chapter may be cited as | ||
the Uniform Fiduciary Access to Digital Assets Act. | ||
Sec. 2001.002. DEFINITIONS. In this chapter: | ||
(1) "Account holder" means: | ||
(A) a person that has entered into a | ||
terms-of-service agreement; and | ||
(B) a fiduciary for a person described in | ||
Paragraph (A). | ||
(2) "Agent" means an attorney in fact granted | ||
authority under a durable or nondurable power of attorney. | ||
(3) "Catalogue of electronic communications" means | ||
information that identifies each person with whom an account holder | ||
has had an electronic communication, the time and date of the | ||
communication, and the electronic mail address of the person. | ||
(4) "Content of an electronic communication" means | ||
information not readily accessible to the public concerning the | ||
substance or meaning of an electronic communication. | ||
(5) "Custodian" means a person that carries, | ||
maintains, or stores a digital asset of an account holder. | ||
(6) "Digital asset" means an electronic record. The | ||
term does not include an underlying asset or liability unless the | ||
asset or liability is itself an electronic record. | ||
(7) "Electronic" means relating to technology having | ||
electrical, digital, magnetic, wireless, optical, electromagnetic, | ||
or similar capabilities. | ||
(8) "Electronic communication" means a digital asset | ||
stored by an electronic-communication service or carried or | ||
maintained by a remote-computing service. The term includes the | ||
catalogue of electronic communications and the content of an | ||
electronic communication. | ||
(9) "Electronic-communication service" means a | ||
custodian that provides to the public the ability to send or receive | ||
an electronic communication. | ||
(10) "Fiduciary" means a person that is a personal | ||
representative, guardian of the estate, agent, or trustee. | ||
(11) "Governing instrument" means a will, trust, | ||
instrument creating a power of attorney, or other dispositive or | ||
nominative instrument. | ||
(12) "Guardian" has the meaning assigned by Section | ||
1002.012. | ||
(13) "Information" means data, text, images, videos, | ||
sounds, codes, computer programs, software, databases, or other | ||
similar items. | ||
(14) Notwithstanding Section 22.027, "person" means | ||
an individual, estate, business or nonprofit entity, public | ||
corporation, government or governmental subdivision, agency, or | ||
instrumentality, or other legal entity. | ||
(15) "Power of attorney" means a record that grants an | ||
agent authority to act in the place of a principal. | ||
(16) "Principal" means an individual who grants | ||
authority to an agent in a power of attorney. | ||
(17) "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. | ||
(18) "Remote-computing service" means a custodian | ||
that provides to the public computer processing services or the | ||
storage of digital assets by means of an electronic communications | ||
system, as defined in 18 U.S.C. Section 2510(14). | ||
(19) "Terms-of-service agreement" means an agreement | ||
that controls the relationship between an account holder and a | ||
custodian. | ||
(20) "Trustee" means a fiduciary with legal title to | ||
an asset under an agreement or declaration that creates a | ||
beneficial interest in others. | ||
Sec. 2001.003. ACCESS BY PERSONAL REPRESENTATIVE TO DIGITAL | ||
ASSETS OF DECEDENT. Unless otherwise provided by a court or the | ||
will of a decedent, a personal representative of the estate of a | ||
decedent may access: | ||
(1) the content of an electronic communication sent or | ||
received by the decedent only if the electronic-communication | ||
service or remote-computing service is permitted to disclose the | ||
content under 18 U.S.C. Section 2702(b); | ||
(2) the catalogue of electronic communications sent or | ||
received by the decedent; and | ||
(3) any other digital asset in which the decedent at | ||
death had a right or interest. | ||
Sec. 2001.004. ACCESS BY GUARDIAN TO DIGITAL ASSETS OF | ||
WARD. The court, after an opportunity for a hearing, may authorize | ||
a guardian of the ward's estate to access: | ||
(1) the content of an electronic communication sent or | ||
received by the ward only if the electronic-communication service | ||
or remote-computing service is permitted to disclose the content | ||
under 18 U.S.C. Section 2702(b); | ||
(2) the catalogue of electronic communications sent or | ||
received by the ward; and | ||
(3) any other digital asset in which the ward has a | ||
right or interest. | ||
Sec. 2001.005. ACCESS BY AGENT TO DIGITAL ASSETS OF | ||
PRINCIPAL. (a) To the extent a power of attorney expressly grants | ||
authority to an agent over the content of an electronic | ||
communication of the principal, the agent may access the content of | ||
an electronic communication sent or received by the principal if | ||
the electronic-communication service or remote-computing service | ||
is permitted to disclose the content under 18 U.S.C. Section | ||
2702(b). | ||
(b) Unless otherwise provided by a power of attorney or the | ||
court, an agent may access: | ||
(1) the catalogue of electronic communications sent or | ||
received by the principal; and | ||
(2) any other digital asset in which the principal has | ||
a right or interest. | ||
Sec. 2001.006. ACCESS BY TRUSTEE TO DIGITAL ASSETS. Unless | ||
otherwise provided by a court or the settlor in the terms of a | ||
trust: | ||
(1) a trustee that is an original account holder, or a | ||
successor of the trustee, may access each digital asset held in | ||
trust, including the catalogue of electronic communications sent or | ||
received by the trustee and the content of an electronic | ||
communication; and | ||
(2) a trustee that is not an original account holder, | ||
or a successor of the trustee, may access: | ||
(A) the content of an electronic communication | ||
sent or received by the original or any successor account holder | ||
only if the electronic-communication service or remote-computing | ||
service is permitted to disclose the content under 18 U.S.C. | ||
Section 2702(b); | ||
(B) the catalogue of electronic communications | ||
sent or received by the original or any successor account holder; | ||
and | ||
(C) any other digital asset of the original or | ||
any successor account holder. | ||
Sec. 2001.007. FIDUCIARY AUTHORITY. (a) A fiduciary that | ||
is an account holder or has the right to access a digital asset of an | ||
account holder: | ||
(1) subject to the terms-of-service agreement and | ||
copyright or other applicable law, may take any action concerning | ||
the asset to the extent of the account holder's authority and the | ||
fiduciary's powers under the law of this state; | ||
(2) has, under applicable electronic privacy laws, the | ||
lawful consent of the account holder for the custodian to divulge | ||
the content of an electronic communication to the fiduciary; and | ||
(3) is, under applicable computer fraud and | ||
unauthorized-access laws, an authorized user. | ||
(b) If a provision in a terms-of-service agreement limits a | ||
fiduciary's access to the digital assets of the account holder, the | ||
provision is void as against the public policy of this state, unless | ||
the account holder, after September 1, 2015, agreed to the | ||
provision by an affirmative act separate from the account holder's | ||
assent to other provisions of the terms-of-service agreement. | ||
(c) A choice-of-law provision in a terms-of-service | ||
agreement is unenforceable against a fiduciary acting under this | ||
chapter to the extent the provision designates law that enforces a | ||
limitation on a fiduciary's access to digital assets that is void | ||
under Subsection (b). | ||
(d) A fiduciary's access under this chapter to a digital | ||
asset does not violate a terms-of-service agreement, | ||
notwithstanding a provision of the agreement that limits | ||
third-party access or requires notice of change in the account | ||
holder's status. | ||
(e) If tangible personal property of a decedent, ward, | ||
principal, or settlor can receive, store, process, or send a | ||
digital asset, a fiduciary with authority over the property may | ||
access the property and any digital asset stored in it. The | ||
fiduciary is an authorized user for purposes of any applicable | ||
computer fraud and unauthorized-access laws. | ||
Sec. 2001.008. COMPLIANCE. (a) If a fiduciary with a right | ||
under this chapter to access a digital asset of an account holder | ||
complies with Subsection (b), the custodian shall comply with the | ||
fiduciary's request for: | ||
(1) access to the asset; | ||
(2) control of the asset; and | ||
(3) a copy of the asset to the extent permitted by | ||
copyright law. | ||
(b) If a request under Subsection (a) is made by: | ||
(1) a personal representative with a right of access | ||
under Section 2001.003, the request must be accompanied by a | ||
certified copy of the letters testamentary or of administration | ||
appointing the representative; | ||
(2) a guardian of the estate with the right of access | ||
under Section 2001.004, the request must be accompanied by a | ||
certified copy of the court order that gives the guardian authority | ||
over the digital asset; | ||
(3) an agent with the right of access under Section | ||
2001.005, the request must be accompanied by an original or a copy | ||
of the power of attorney that authorizes the agent to exercise | ||
authority over the digital asset and a certification of the agent, | ||
under penalty of perjury, that the power of attorney is in effect; | ||
and | ||
(4) a trustee with the right of access under Section | ||
2001.006, the request must be accompanied by a certified copy of the | ||
trust instrument, or a certification of the trust under Section | ||
114.086, Property Code, that authorizes the trustee to exercise | ||
authority over the digital asset. | ||
(c) A custodian shall comply with a request made under | ||
Subsection (a) not later than 60 days after receipt. If the | ||
custodian fails to comply, the fiduciary may apply to the court for | ||
an order directing compliance. | ||
(d) This section does not limit the right of a person to | ||
obtain a copy of a trust instrument in a judicial proceeding | ||
concerning the trust. | ||
Sec. 2001.009. CUSTODIAN IMMUNITY. A custodian and the | ||
custodian's officers, employees, and agents are immune from | ||
liability for any act done in good faith in compliance with this | ||
chapter. | ||
Sec. 2001.010. UNIFORMITY OF APPLICATION AND CONSTRUCTION. | ||
In applying and construing this uniform act, consideration must be | ||
given to the need to promote uniformity of the law with respect to | ||
its subject matter among states that enact it. | ||
Sec. 2001.011. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL | ||
AND NATIONAL COMMERCE ACT. This chapter modifies, limits, and | ||
supersedes the Electronic Signatures in Global and National | ||
Commerce Act (15 U.S.C. Section 7001 et seq.), but does not modify, | ||
limit, or supersede Section 101(c) of that Act (15 U.S.C. Section | ||
7001(c)) or authorize electronic delivery of any of the notices | ||
described in Section 103(b) of that Act (15 U.S.C. Section | ||
7003(b)). | ||
SECTION 2. This Act applies to: | ||
(1) a fiduciary or agent acting under a will, trust, or | ||
power of attorney executed before, on, or after the effective date | ||
of this Act; | ||
(2) a personal representative acting for a decedent | ||
who died before, on, or after the effective date of this Act; and | ||
(3) a guardianship proceeding pending or commenced | ||
before, on, or after the effective date of this Act. | ||
SECTION 3. This Act takes effect September 1, 2015. |