Bill S.974

SENATE DOCKET, NO. 1822 FILED ON: 1/20/2023

SENATE . . . . . . . . . . . . . . No. 974

By Mr. Finegold, a petition (accompanied by bill, Senate, No. 974) of Barry R. Finegold for legislation relative to uniform fiduciary access to digital assets. The Judiciary.

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 1033 OF 2021-2022.]

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-Third General Court
(2023-2024)

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An Act relative to fiduciary access to digital assets.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. The General Laws are hereby amended by inserting after chapter 201F the following chapter:-

CHAPTER 201G. Massachusetts Fiduciary Access to Digital Assets Act

Section 1. Definitions

As used in this chapter, the following words shall have the following meanings, unless the context clearly requires otherwise:

“Account”, 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.

“Agent”, an attorney-in-fact granted authority under a durable or nondurable power of attorney.

“Carries”, engages in the transmission of an electronic communication.

“Catalogue of electronic communications”, 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 such person.

“Conservator”, a person appointed by a court to manage the estate of a protected person and includes a limited conservator, temporary conservator, special conservator and those individuals specifically authorized under section 5-408 of chapter 190B.

“Content of an electronic communication”, information concerning the substance or meaning of the communication which:

(i) has been sent or received by a user;

(ii) 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

(iii) is not readily accessible to the public.

“Court”, the probate and family court department of the trial court.

“Custodian”, a person that carries, maintains, processes, receives or stores a digital asset of a user.

“Designated recipient”, a person chosen by a user using an online tool to administer digital assets of the user.

“Digital asset”, an electronic record in which an individual has a right or interest; provided, however, that “digital asset” shall not include an underlying asset or liability unless the asset or liability is itself an electronic record.

“Electronic”, relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities.

“Electronic communication”, as set forth in 18 U.S.C. section 2510(12), as amended.

“Electronic-communication service”, a custodian that provides to a user the ability to send or receive an electronic communication.

“Fiduciary”, an original, additional or successor personal representative, conservator, agent or trustee.

“Information”, data, text, images, videos, sounds, codes, computer programs, software, databases or the like.

“Higher education institution”, a public or private institution of higher education, including, but not limited to, a college, community college, junior college, graduate school or university.

“Higher education institutional account”, an account of which the custodian is: (i) a higher education institution; or (ii) a custodian acting on behalf of a higher education institution.

“Online tool”, 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.

“Person”, an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency or instrumentality or other legal entity.

“Personal representative”, an executor, administrator, special administrator or person that performs substantially the same function under law of this commonwealth other than this chapter.

“Power of attorney”, a record that grants an agent authority to act in the place of a principal.

“Principal”, an individual who grants authority to an agent in a power of attorney.

“Protected person”, an individual for whom a conservator has been appointed; provided, however, that “protected person” shall include an individual for whom a petition for the appointment of a conservator is pending.

“Record”, information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

“Remote-computing service”, 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. section 2510(14), as amended.

“Terms-of-service agreement”, an agreement that controls the relationship between a user and a custodian.

“Trustee”, a fiduciary with legal title to property under an agreement or declaration that creates a beneficial interest in another; provided, however, that "trustee" shall include an original, additional or successor trustee, whether or not appointed or confirmed by the court.

“User”, a person that has an account with a custodian.

“Will” shall include, but not be limited to, a codicil, testamentary instrument that only appoints a personal representative or an instrument that revokes or revises a testamentary instrument.

Section 2. Scope and Applicability

(a) This chapter shall apply to:

(i) a fiduciary acting under a will or power of attorney executed before, on or after the effective date of this chapter;

(ii) a personal representative acting for a decedent who died before, on or after the effective date of this chapter;

(iii) a conservatorship proceeding commenced before, on or after the effective date of this chapter; or

(iv) a trustee acting under a trust created before, on or after the effective date of this chapter.

(b) This chapter shall apply to a custodian if the user resides in this commonwealth or resided in this commonwealth at the time of the user’s death.

(c) This chapter shall not apply to a digital asset of an employer used by an employee in the ordinary course of the employer’s business; provided, however, that for the purposes of this chapter, an individual enrolled at a higher education institution shall not be considered an employee of the higher education institution with regard to any electronic communications or digital assets produced in the ordinary course of the individual’s course of study.

Section 3. User Direction for Disclosure of Digital Assets

(a) A user may use an online tool to direct the custodian to disclose 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 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.

(b) If a user has not used an online tool to give direction under subsection (a) 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.

(c) A user’s direction under subsection (a) or (b) of this section 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.

Section 4. Terms-of-Service Agreement

(a) 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 the digital assets of the user.

(b) This chapter does not give a fiduciary any new or expanded rights other than those held by the user for whom, or for whose estate, the fiduciary acts or represents.

(c) A fiduciary’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 3 of this chapter.

(d) Notwithstanding anything in this section to the contrary, if a user’s account is a higher education institutional account, a user’s assent to a terms-of-service agreement shall not be construed to constitute the user’s direction to prohibit the disclosure of the user's digital assets to a fiduciary upon or after the user's death.

Section 5. Procedure for Disclosing Digital Assets

(a) When disclosing the digital assets of a user under this chapter, the custodian may at its sole discretion:

(i) grant a fiduciary or designated recipient full access to the user’s account;

(ii) 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; or

(iii) 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 and had full capacity and access to the account.

(b) A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this chapter.

(d) If a user directs or a fiduciary requests a custodian to disclose under this chapter some, but not all, of the user’s digital assets, the custodian shall not be required to 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:

(i) a subset limited by date of the user’s digital assets;

(ii) all of the user’s digital assets to the fiduciary or designated recipient;

(iii) none of the user’s digital assets; or

(iv) all of the user’s digital assets to the court for review in camera.

Section 6. Disclosure of Electronic Communications of Deceased User

(a) 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 representative gives to the custodian:

(i) a written request for disclosure in physical or electronic form;

(ii) a certified copy of the death certificate of the user;

(iii) an attested copy of the letter of appointment of the representative or a small-estate affidavit or court order;

(iv) unless the deceased user provided direction using an online tool, a copy of the user’s will, trust or other record evidencing the user’s consent to disclosure of the content of electronic communications; and

(v) if requested by the custodian:

(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; or

(3) a finding by the court that:

(A) the user had a specific account with the custodian, identifiable by the information specified in paragraph (1);

(B) disclosure of the content of electronic communications of the user would not violate 18 U.S.C. section 2701 et seq., as amended, 47 U.S.C. section 222, as amended, or other applicable law;

(C) unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications; or

(D) disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.

(b) Notwithstanding anything in this section to the contrary, unless the deceased user prohibited disclosure of digital assets or a court directs otherwise, 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:

(i) the user’s account was a higher education institutional account;

(ii) the user was 25 years of age or younger at the time of their death; and

(iii) the representative gives to the custodian each of the records required pursuant to clauses (i) through (iii) of subsection (a) and requested pursuant to clause (v) of subsection (a); provided, however, that the representative shall not be required to give a record of the user’s consent to disclosure if such record does not exist.

(c) Unless the deceased user prohibited disclosure of digital assets or a 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; provided, however, that the representative shall give to the custodian:

(1) each of the records required pursuant to clauses (i) through (iii) of subsection (a); and

(2) if requested by the custodian:

(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 that the user had a specific account with the custodian, identifiable by the information specified in subparagraph (A); or

(D) an affidavit or a finding by the court stating that disclosure of the user’s digital assets is reasonably necessary for administration of the estate.

Section 7. Disclosure of Digital Assets of Principal

(a) 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 to the custodian:

(i) a written request for disclosure in physical or electronic form;

(ii) 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;

(iii) a certification by the agent, under penalty of perjury, that the power of attorney is in effect; and

(iv) if requested by the custodian:

(1) a number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the principal’s account; or

(2) evidence linking the account to the principal.

(b) 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 to the custodian:

(i) each of the records required pursuant to clauses (i) and (iii) of subsection (a) and requested pursuant to clause (iv) of subsection (a); and

(ii) an original or a copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal.

Section 8. Disclosure of Digital Assets Held in Trust

(a) 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.

(b) 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 to the custodian:

(i) a written request for disclosure in physical or electronic form;

(ii) a certified copy of the trust instrument or a certification of the trust under chapter 203E; provided, however, that such copy shall include the original user’s consent to disclosure of the content of electronic communications to the trustee, unless the original user’s account was a higher education institutional account and the original user was 25 years of age or younger at the time of their death;

(iii) a certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and

(iv) if requested by the custodian:

(1) a number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the trust’s account; or

(2) evidence linking the account to the trust.

(c) 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 to the custodian: (1) each of the records required pursuant to clause (i) and (iii) of subsection (b) and requested pursuant to clause (iv) of subsection (b); and (2) a certified copy of the trust instrument or a certification of the trust under chapter 203E.

Section 9. Disclosure of Digital Assets to Conservator of Protected Person

(a) After an opportunity for a hearing under chapter 190B, the court may grant a conservator access to the digital assets of a protected person.

(b) Unless otherwise ordered by the court or directed by the user, a custodian shall disclose to a conservator the catalogue of electronic communications sent or received by a protected person and any digital assets, other than the content of electronic communications, in which the protected person has a right or interest if the conservator gives to the custodian:

(i) a written request for disclosure in physical or electronic form;

(ii) an attested copy of the court order that gives the conservator authority over the digital assets of the protected person; and

(iii) if requested by the custodian:

(1) a number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the account of the protected person; or

(2) evidence linking the account to the protected person.

(c) A conservator with general authority to manage the assets of a protected person may request a custodian of the digital assets of the protected person to suspend or terminate an account of the protected person for good cause. A request made under this section shall be accompanied by an attested copy of the court order giving the conservator authority over the protected person’s property.

Section 10. Fiduciary Duty and Authority

(a) The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including:

(i) the duty of care;

(ii) the duty of loyalty; and

(iii) the duty of confidentiality.

(b) A fiduciary’s authority with respect to a digital asset of a user:

(i) except as otherwise provided in sections 3 or 4 of this chapter, is subject to the applicable terms-of-service agreement;

(ii) is subject to other applicable law, including copyright law;

(iii) is limited by the scope of the fiduciary’s duties; and

(iv) shall not be used to impersonate the user.

(c) 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 custodian or subject to a terms-of-service agreement.

(d) 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 section 120F of chapter 266.

(e) A fiduciary with authority over the tangible, personal property of a decedent, protected person, principal or settlor:

(i) has the right to access the property and any digital asset stored in it; and

(ii) is an authorized user for the purpose of computer-fraud and unauthorized-computer-access laws, including section 120F of chapter 266.

(f) 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.

(g) A fiduciary of a user may request a custodian to terminate the user’s account. A request for termination shall be in writing, in either physical or electronic form, and accompanied by:

(i) if the user is deceased, a certified copy of the death certificate of the user;

(ii) an attested copy of the letter of appointment of the representative or a small-estate affidavit or court order, court order, power of attorney or trust giving the fiduciary authority over the account; and

(iii) if requested by the custodian:

(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; or

(3) a finding by the court that the user had a specific account with the custodian, identifiable by the information specified in paragraph (1).

Section 16. Custodian Compliance and Immunity

(a) Not later than 60 days after receipt of the information required under sections 6 through 9 of this chapter, 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.

(b) An order under subsection (a) of this section directing compliance shall contain a finding that compliance is not in violation of 18 U.S.C. section 2702, as amended.

(c) A custodian may notify the user that a request for disclosure or to terminate an account was made under this chapter.

(d) 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.

(e) 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:

(i) specifies that an account belongs to the protected person or principal;

(ii) specifies that there is sufficient consent from the protected person or principal to support the requested disclosure; and

(iii) contains a finding required by law other than this chapter.

(f) 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 chapter.

Section 17. Severability

If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.

SECTION 2. Chapter 201G of the General Laws shall take effect 1 year after the passage of this act.

Name:	District/Address:
Barry R. Finegold	Second Essex and Middlesex