First Regular Session Seventieth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 15-0667.01 Richard Sweetman x4333HOUSE BILL 15-1189 HOUSE SPONSORSHIP Keyser, SENATE SPONSORSHIP Steadman, House Committees Senate Committees Judiciary A BILL FOR AN ACT Concerning the "Colorado Uniform Fiduciary Access to Digital Assets Act". Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) Colorado Commission on Uniform State Laws. The bill enacts the "Uniform Fiduciary Access to Digital Assets Act", as amended, as Colorado law. The bill sets forth the conditions under which certain fiduciaries may access: The content of an electronic communication of a principal or decedent; A catalog of electronic communications sent or received by a decedent or principal; and Any other digital asset in which a principal has a right or interest or in which a decedent had a right or interest at death. As to tangible personal property capable of receiving, storing, processing, or sending a digital asset, a fiduciary with authority over the property of a decedent, protected person, principal, or settlor may access the property and any digital asset stored in it and is an authorized user for purposes of computer fraud and unauthorized computer access laws. "Fiduciary" means a personal representative, a conservator, an agent, or a trustee. A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good-faith compliance with the provisions of the bill. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, add part 15 to article 1 of title 15 as follows: PART 15 UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT 15-1-1501. Short title. This part 15 shall be known and may be cited as the "Colorado Uniform Fiduciary Access to Digital Assets Act". 15-1-1502. Definitions. As used in this part 15, unless the context requires otherwise: (1) "Account holder" means a person who has entered into a terms-of-service agreement with a custodian or a fiduciary for the person. (2) "Agent" means an attorney-in-fact granted authority under a durable or nondurable power of attorney. (3) "Carries" means engages in the transmission of electronic communications. (4) "Catalogue of electronic communications" means information that identifies each person with which an account holder has had an electronic communication, the time and date of the communication, and the electronic address of the person. (5) "Conservator" means a person appointed by a court to manage the estate of a living individual. The term includes a limited conservator. (6) "Content of an electronic communication" means information concerning the substance or meaning of a communication that: (a) Has been sent or received by an account holder; (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. (7) "Court" means a district court or the probate court for the city and county of Denver. (8) "Custodian" means a person who carries, maintains, processes, receives, or stores a digital asset of an account holder. (9) "Digital asset" means a record that is electronic. The term does not include an underlying asset or liability unless the asset or liability is itself a record that is electronic. (10) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. (11) "Electronic communication" has the same meaning as set forth in 18 U.S.C. sec. 2510 (12), as amended. (12) "Electronic communication service" means a custodian that provides to an account holder the ability to send or receive an electronic communication. (13) "Fiduciary" means an original, additional, or successor personal representative, conservator, agent, or trustee. (14) "Governing instrument" means a will, trust, instrument creating a power of attorney, or other dispositive or nominative instrument. (15) "Information" means data, text, images, videos, sounds, codes, computer programs, software, databases, or the like. (16) "Person" means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity. (17) "Personal representative" means an executor, administrator, special administrator, or person that performs substantially the same function under the laws of this state. (18) "Power of attorney" means a record that grants an agent authority to act in the place of a principal. (19) "Principal" means an individual who grants authority to an agent in a power of attorney. (20) "Protected person" means an individual for whom a conservator has been appointed. The term includes an individual for whom an application for the appointment of a conservator is pending. (21) "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. (22) "Remote computing service" means a custodian that provides to an account holder computer processing services or the storage of digital assets by means of an electronic communications system, as defined in 18 U.S.C. sec. 2510 (14), as amended. (23) "Terms-of-service agreement" means an agreement that controls the relationship between an account holder and a custodian. (24) "Trustee" means a fiduciary with legal title to property pursuant to an agreement or declaration that creates a beneficial interest in another. The term includes a successor trustee. (25) "Will" includes a codicil, a testamentary instrument that only appoints an executor, and an instrument that revokes or revises a testamentary instrument. 15-1-1503. Applicability. (1) This part 15 applies to: (a) A fiduciary or agent acting under a will or power of attorney executed before, on, or after the effective date of this part 15; (b) A personal representative acting for a decedent who died before, on, or after the effective date of this part 15; (c) A conservatorship proceeding, whether pending in a court or commenced before, on, or after the effective date of this part 15; and (d) A trustee acting under a trust created before, on, or after the effective date of this part 15. (2) This part 15 does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer's business. 15-1-1504. Access by personal representative to digital asset of decedent. (1) Subject to section 15-1-1508 (2), and unless otherwise ordered by the court or provided in the will of a decedent, the personal representative of the decedent has the right to access: (a) The content of an electronic communication that the custodian is permitted to disclose under the "Electronic Communications Privacy Act", 18 U.S.C. sec. 2702(b), as amended; (b) Any catalog of electronic communications sent or received by the decedent; and (c) Any other digital asset in which the decedent had a right or interest at death. 15-1-1505. Access by conservator to digital asset of protected person. (1) Subject to section 15-1-1508 (2), the court, after an opportunity for hearing under article 14 or 14.5 of this title, may grant a conservator the right to access: (a) The content of an electronic communication that the custodian is permitted to disclose under the "Electronic Communications Privacy Act", 18 U.S.C. sec. 2702(b), as amended; (b) Any catalogue of electronic communications sent or received by the protected person; and (c) Any other digital asset in which the protected person has a right or interest. 15-1-1506. Access by agent to digital asset of principal. (1) To the extent a power of attorney expressly grants an agent authority over the content of an electronic communication of the principal, and except as described in section 15-1-1508 (2), the agent has the right to access the content of an electronic communication that the custodian is permitted to disclose under the "Electronic Communications Privacy Act", 18 U.S.C. sec. 2702(b), as amended. (2) Except as described in section 15-1-1508 (2), and unless otherwise ordered by the court or provided by a power of attorney, an agent has the right to access: (a) Any catalog of electronic communications sent or received by the principal; and (b) Any other digital asset in which the principal has a right or interest. 15-1-1507. Access by trustee to digital asset. (1) Except as described in section 15-1-1508 (2), and unless otherwise ordered by the court or provided in a trust, a trustee that is an original account holder has the right to access any digital asset held in trust, including any catalog of electronic communications of the trustee and the content of an electronic communication. (2) Except as described in section 15-1-1508 (2), and unless otherwise ordered by the court or provided in a trust, a trustee that is not an original account holder has the right to access: (a) The content of an electronic communication that the custodian is permitted to disclose under the "Electronic Communications Privacy Act", 18 U.S.C. sec. 2702(b), as amended; (b) Any catalog of electronic communications sent or received by the original or any successor account holder; and (c) Any other digital asset in which the original or any successor account holder has a right or interest. 15-1-1508. Fiduciary authority. (1) A fiduciary that is an account holder or that has the right under this part 15 to access a digital asset of an account holder: (a) Except as otherwise provided by a terms-of-service agreement, copyright law, and other applicable law, may take any action concerning the asset to the extent of the account holder's authority and the fiduciary's power under the law of this state; (b) Has, for the purpose of 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 (c) Is, for the purposes of any applicable computer fraud and unauthorized computer access laws, including article 5.5 of title 18, C.R.S., an authorized user. (2) Unless an account holder agrees after the effective date of this part 15 to a provision in a terms-of-service agreement that limits a fiduciary's access to a digital asset of the account holder by an affirmative act separate from the account holder's assent to other provisions of the agreement: (a) The provision is void as contrary to the strong public policy of this state; and (b) The fiduciary's access under this part 15 to a digital asset does not violate the terms-of-service agreement even if the agreement requires notice of a change in the account holder's status. (3) A choice-of-law provision in a terms-of-service agreement is unenforceable against a fiduciary acting under this part 15 to the extent the provision designates law that enforces a limitation on a fiduciary's access to a digital asset, and the limitation is void under subsection (2) of this section. (4) As to tangible personal property capable of receiving, storing, processing, or sending a digital asset, a fiduciary with authority over the property of a decedent, protected person, principal, or settlor: (a) Has the right to access the property and any digital asset stored in it; and (b) Is an authorized user for purposes of any applicable computer fraud and unauthorized computer access laws, including article 5.5 of title 18, C.R.S. 15-1-1509. Compliance. (1) If a fiduciary with a right under this part 15 to access a digital asset of an account holder complies with subsection (2) of this section, the custodian shall comply with the fiduciary's request in a record for: (a) Access to the asset; (b) Control of the asset; and (c) A copy of the asset to the extent permitted by copyright law. (2) (a) If a request under subsection (1) of this section is made by a personal representative with the right of access under section 15-1-1504, the request must be accompanied by: (I) A certified copy of the letter of appointment of the representative; or (II) A small-estate affidavit or court order. (b) If a request under subsection (1) of this section is made by a conservator with the right of access under section 15-1-1505, the request must be accompanied by a certified copy of the court order that gives the conservator authority over the digital asset. (c) If a request under subsection (1) of this section is made by an agent with the right of access under section 15-1-1506, 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. (d) If a request under subsection (1) of this section is made by a trustee with the right of access under section 15-1-1507, the request must be accompanied by a certified copy of the trust instrument. (3) A custodian shall comply with a request made under subsection (1) of this section not later than sixty days after receipt. If the custodian fails to comply, the fiduciary may apply to the court for an order directing compliance. (4) As described in paragraph (d) of subsection (2) of this section, instead of furnishing a copy of the trust instrument, a trustee may provide a certification of trust. The certification: (a) Must contain the following information: (I) A statement that the trust exists and the date the trust instrument was executed; (II) The identity of the settlor; (III) The identity and address of the trustee; (IV) A statement that there is nothing inconsistent in the trust with respect to the trustee's powers over digital assets; (V) A statement indicating whether the trust is revocable and, if so, the identity of any person holding a power to revoke the trust; (VI) A statement indicating whether a cotrustee has authority to sign or otherwise authenticate; and (VII) A statement indicating whether all or fewer than all cotrustees are required to exercise powers of the trustee; (b) Must be signed or otherwise authenticated by a trustee; (c) Must state that the trust has not been revoked, modified, or amended in a manner that would cause the representations contained in the certification of trust to be incorrect; and (d) Need not contain the dispositive terms of the trust. (5) A custodian that receives a certification under subsection (4) of this section may require the trustee to provide copies of excerpts from the original trust instrument and later amendments designating the trustee and conferring on the trustee the power to act in the pending transaction. (6) A custodian that acts in reliance on a certification provided under subsection (4) of this section without knowledge that the representations contained in it are incorrect is not liable to any person for so acting and may assume without inquiry the existence of facts stated in the certification. (7) A person who in good faith enters into a transaction in reliance on a certification provided under subsection (4) of this section may enforce the transaction against the trust property as if the representations contained in the certification were correct. (8) A person who demands the trust instrument in addition to a certification provided under subsection (4) of this section or excerpts provided under subsection (5) of this section is liable for damages, including attorneys' fees, if the court determines that the person did not act in good faith in demanding the instrument. (9) 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. 15-1-1510. Custodian immunity. A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good faith in compliance with this part 15. 15-1-1511. Uniformity of application and construction. In applying and construing this uniform act, courts shall give consideration to the need to promote uniformity of the law with respect to its subject matter among states that enact it. 15-1-1512. Relation to "Electronic Signatures in Global and National Commerce Act". This part 15 modifies, limits, or supersedes the "Electronic Signatures in Global and National Commerce Act", 15 U.S.C. sec. 7001 et seq., but does not modify, limit, or supersede section 101 (c) of that act, 15 U.S.C. sec. 7001(c), or authorize electronic delivery of any of the notices described in section 103 (b) of that act, 15 U.S.C. sec. 7003(b). 15-1-1513. Severability. If any provision of this part 15 or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this part 15 which can be given effect without the invalid provision or application, and to this end the provisions of this part 15 are severable. SECTION 2. In Colorado Revised Statutes, 2-5-102, add (13) as follows: 2-5-102. Inclusions - nonstatutory. (13) The revisor of statutes shall include in the publication of the "Colorado Uniform Fiduciary Access to Digital Assets Act", as nonstatutory matter, following each section of the article, the full text of the official comments to that section contained in the official volume containing the 2014 official text of the "Uniform Fiduciary Access to Digital Assets Act" issued by the national conference of commissioners on uniform state laws, with any changes in the official comments or Colorado comments to correspond to Colorado changes in the uniform act. The revisor of statutes shall prepare the comments and approve them for publication by the committee on legal services. SECTION 3. Act subject to petition - effective date. This act takes effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly (August 5, 2015, if adjournment sine die is on May 6, 2015); except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within such period, then the act, item, section, or part will not take effect unless approved by the people at the general election to be held in November 2016 and, in such case, will take effect on the date of the official declaration of the vote thereon by the governor.