Connecticut 2015 Regular Session

Connecticut Senate Bill SB00979 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	General Assembly Substitute Bill No. 979
2		-	January Session, 2015 _____SB00979JUD___040715____
	1	+	General Assembly Raised Bill No. 979
	2	+	January Session, 2015 LCO No. 3964
	3	+	03964_______JUD
	4	+	Referred to Committee on JUDICIARY
	5	+	Introduced by:
	6	+	(JUD)
3	7
4	8		General Assembly
5	9
6		-	~~Substitute~~ Bill No. 979
	10	+	Raised Bill No. 979
7	11
8	12		January Session, 2015
9	13
10		-	_____SB00979JUD___040715____
	14	+	LCO No. 3964
	15	+
	16	+	03964_______JUD
	17	+
	18	+	Referred to Committee on JUDICIARY
	19	+
	20	+	Introduced by:
	21	+
	22	+	(JUD)
11	23
12	24		AN ACT CONCERNING THE CONNECTICUT UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT.
13	25
14	26		Be it enacted by the Senate and House of Representatives in General Assembly convened:
15	27
16	28		Section 1. (NEW) (Effective October 1, 2015) Sections 1 to 12, inclusive, of this act may be cited as the "Connecticut Uniform Fiduciary Access to Digital Assets Act".
17	29
18	30		Sec. 2. (NEW) (Effective October 1, 2015) As used in sections 1 to 12, inclusive, of this act:
19	31
20	32		(1) "Account holder" means (A) a person that has entered into a terms of service agreement with a custodian, or (B) a fiduciary for such person;
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22	34		(2) "Agent" means an attorney in fact who is granted authority under a durable or nondurable power of attorney;
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24	36		(3) "Carries" means engages in the transmission of electronic communications;
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26	38		(4) "Catalog 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;
27	39
28	40		(5) "Conservator" means (A) a conservator, as defined in subsection (a) of section 45a-644 of the general statutes, who is appointed by a court to manage the estate of a living adult individual, (B) a conservator granted voluntary representation of an individual pursuant to section 45a-646 of the general statutes, or (C) a temporary conservator appointed pursuant to section 45a-654 of the general statutes;
29	41
30	42		(6) "Conserved person" means an individual for whom a conservator has been appointed. "Conserved person" includes a respondent, as defined in section 45a-644 of the general statutes, for whom an application for the appointment of a conservator is pending;
31	43
32	44		(7) "Content of an electronic communication" means information concerning the substance or meaning of the communication which:
33	45
34	46		(A) Has been sent or received by an account holder;
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36	48		(B) Is maintained 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
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38	50		(C) Is not readily accessible to the public;
39	51
40	52		(8) "Court" means a court of competent jurisdiction, including, but not limited to, the Probate Court or the Superior Court;
41	53
42	54		(9) "Custodian" means a person that carries, maintains, processes, receives or stores a digital asset of an account holder;
43	55
44	56		(10) "Digital asset" means a record that is electronic. "Digital asset" does not include an underlying digital asset or liability unless the digital asset or liability is itself a record that is electronic;
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46	58		(11) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical or electromagnetic capabilities or similar capabilities;
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48	60		(12) "Electronic communication" has the same meaning as provided in 18 USC 2510(12), as amended from time to time;
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50	62		(13) "Electronic communication service" means a custodian that provides to an account holder the ability to send or receive an electronic communication;
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52	64		(14) "Executor" means an executor, administrator, special administrator or temporary administrator of an estate or any person who performs substantially the same function as such executor, administrator, special administrator or temporary administrator under the laws of this state other than sections 1 to 12, inclusive, of this act;
53	65
54	66		(15) "Fiduciary" means an original, additional or successor executor, or a conservator, agent or trustee;
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56	68		(16) "Information" means data, text, images, videos, sounds, codes, computer programs, software, databases or the like;
57	69
58	70		(17) "Person" means an individual, estate, trust, business or nonprofit entity, public corporation, government or governmental subdivision, agency or instrumentality or other legal entity;
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60	72		(18) "Power of attorney" means a record that grants an agent authority to act in the place of a principal;
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62	74		(19) "Principal" means an individual who grants authority to an agent in a power of attorney;
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64	76		(20) "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;
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66	78		(21) "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 USC 2510(14), as amended from time to time;
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68	80		(22) "Terms of service agreement" means an agreement that controls the relationship between an account holder and a custodian;
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70	82		(23) "Trustee" means a fiduciary with legal title to property under a will or pursuant to an agreement or declaration that creates a beneficial interest in another person. "Trustee" includes a successor trustee; and
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72	84		(24) "Will" includes a codicil, a testamentary instrument that only appoints an executor and an instrument that revokes or revises a testamentary instrument.
73	85
74	86		Sec. 3. (NEW) (Effective October 1, 2015) (a) Sections 1 to 12, inclusive, of this act apply to:
75	87
76	88		(1) An agent acting under a power of attorney executed before, on or after October 1, 2015;
77	89
78	90		(2) An executor acting for a decedent who died before, on or after October 1, 2015;
79	91
80	92		(3) A conservator acting in a conservatorship proceeding, whether pending in a court or commenced before, on or after October 1, 2015;
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82	94		(4) A trustee acting under a trust created before, on or after October 1, 2015; and
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84	96		(5) Any proceeding filed in a court prior to October 1, 2015, pursuant to section 45a-334a of the general statutes, revision of 1958, revised to January 1, 2015, that is pending on October 1, 2015.
85	97
86	98		(b) Sections 1 to 12, inclusive, of this act do not apply to a digital asset of an employer used by an employee in the ordinary course of the employer's business.
87	99
88	100		Sec. 4. (NEW) (Effective October 1, 2015) Subject to the provisions of subsection (b) of section 8 of this act and unless otherwise ordered by the court or provided in the will of a decedent, the executor of the decedent has the right to access:
89	101
90	102		(1) The content of an electronic communication that the custodian is permitted to divulge under the Electronic Communications Privacy Act, 18 USC 2702(b), as amended from time to time;
91	103
92	104		(2) Any catalog of electronic communications sent or received by the decedent; and
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94	106		(3) Any other digital asset in which at death the decedent had a right or interest.
95	107
96	108		Sec. 5. (NEW) (Effective October 1, 2015) Subject to the provisions of subsection (b) of section 8 of this act, the court, after notice and personal service in the manner prescribed under subsection (a) of section 45a-649 of the general statutes for matters under chapter 802h of the general statutes, and an opportunity for a hearing in the manner prescribed in sections 45a-645a to 45a-645c, inclusive, of the general statutes, a court may grant a conservator the right to access:
97	109
98	110		(1) The content of an electronic communication that the custodian is permitted to divulge under the Electronic Communications Privacy Act, 18 USC 2702(b), as amended from time to time;
99	111
100	112		(2) Any catalog of electronic communications sent or received by the conserved person; and
101	113
102	114		(3) Any other digital asset in which the conserved person has a right or interest.
103	115
104	116		Sec. 6. (NEW) (Effective October 1, 2015) (a) To the extent a power of attorney expressly grants an agent authority over the content of an electronic communication of the principal and subject to the provisions of subsection (b) of section 8 of this act, the agent has the right to access the content of an electronic communication that the custodian is permitted to divulge under the Electronic Communications Privacy Act, 18 USC 2702(b), as amended from time to time.
105	117
106	118		(b) Subject to the provisions of subsection (b) of section 8 of this act and unless otherwise ordered by the court or provided by a power of attorney, an agent has the right to access:
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108	120		(1) Any catalog of electronic communications sent or received by the principal; and
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110	122		(2) Any other digital asset in which the principal has a right or interest.
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112	124		Sec. 7. (NEW) (Effective October 1, 2015) (a) Subject to the provisions of subsection (b) of section 8 of this act and unless otherwise ordered by the court or provided in a trust instrument, 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.
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114	126		(b) Subject to the provisions of subsection (b) of section 8 of this act and unless otherwise ordered by the court or provided in a trust instrument, a trustee that is not an original account holder has the right to access:
115	127
116	128		(1) The content of an electronic communication that the custodian is permitted to divulge under the Electronic Communications Privacy Act, 18 USC 2702(b), as amended from time to time;
117	129
118	130		(2) Any catalog of electronic communications sent or received by the original or any successor account holder; and
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120	132		(3) Any other digital asset in which the original or any successor account holder has a right or interest.
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122	134		Sec. 8. (NEW) (Effective October 1, 2015) (a) A fiduciary that is an account holder or has the right under sections 1 to 12, inclusive, of this act to access a digital asset of an account holder:
123	135
124	136		(1) Subject to the terms of service agreement, copyright law and other applicable law, may take any action concerning the digital asset to the extent of the account holder's authority and the fiduciary's power under the law of this state other than sections 1 to 12, inclusive, of this act;
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126	138		(2) 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
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128	140		(3) Is, for the purpose of applicable computer fraud and unauthorized computer access laws, including, but not limited to, section 53a-251 of the general statutes, an authorized user of such digital asset and is authorized to access such digital asset.
129	141
130	142		(b) Unless an account holder, after October 1, 2015, agrees 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:
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132	144		(1) The provision is void as against the strong public policy of this state; and
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134	146		(2) The fiduciary's access under sections 1 to 12, inclusive, of this act 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.
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136	148		(c) A choice of law provision in a terms of service agreement is unenforceable against a fiduciary acting under sections 1 to 12, inclusive, of this act 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 (b) of this section.
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138	150		(d) 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, conserved person, principal or settlor:
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140	152		(1) Has the right to access the tangible personal property and any digital asset stored in the tangible personal property; and
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142	154		(2) Is an authorized user of such digital asset and is authorized to access such digital asset for the purposes of any applicable computer fraud and unauthorized computer access laws, including, but not limited to, section 53a-251 of the general statutes.
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144	156		Sec. 9. (NEW) (Effective October 1, 2015) (a) If a fiduciary with a right under sections 1 to 12, inclusive, of this act to access a digital asset of an account holder complies with subsection (b) of this section, the custodian shall comply with the fiduciary's request in a record for:
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146	158		(1) Access to the digital asset;
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148	160		(2) Control of the digital asset; and
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150	162		(3) A copy of the digital asset to the extent permitted by copyright law.
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152	164		(b) If a request under subsection (a) of this section is made by:
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154	166		(1) An executor with the right of access under section 4 of this act, the request must be accompanied by a certificate of appointment of the executor or court order;
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156	168		(2) A conservator with the right of access under section 5 of this act, the request must be accompanied by a court certified order that gives the conservator authority over the digital asset;
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158	170		(3) An agent with the right of access under section 6 of this act, 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
159	171
160		-	(4) A trustee with the right of access under section 7 of this act, the request must be accompanied by an original or a copy of the trust instrument or a certification of trust under subsection (d) of this section that authorizes the trustee to exercise authority over the digital asset.
	172	+	(4) A trustee with the right of access under section 7 of this act, the request must be accompanied by an original or a copy of the trust instrument or a certification of the trust under subsection (d) of this section that authorizes the trustee to exercise authority over the digital asset.
161	173
162	174		(c) A custodian shall comply with a request made under subsection (a) of this section not later than sixty days after receipt of the request. If the custodian fails to comply with such request, the fiduciary may apply to the court for an order directing compliance.
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164	176		(d) Instead of furnishing a copy of the trust instrument under subdivision (4) of subsection (b) of this section, the trustee may provide a certification of trust. The certification:
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166	178		(1) Must contain the following information:
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168	180		(A) That the trust exists and the date the trust instrument was executed;
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170	182		(B) The identity of the settlor;
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172	184		(C) The identity and address of the trustee;
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174	186		(D) A statement that there is nothing inconsistent in the trust with respect to the trustee's powers over digital assets;
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176	188		(E) A statement of whether the trust is revocable and the identity of any person holding a power to revoke the trust;
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178	190		(F) A statement of whether a cotrustee has authority to sign or otherwise authenticate; and
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180	192		(G) Whether all or fewer than all cotrustees are required to exercise powers of the trustee;
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182	194		(2) Must be signed or otherwise authenticated by a trustee;
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184	196		(3) 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
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186	198		(4) Need not contain the dispositive terms of the trust.
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188		-	(e) A custodian that receives a certification ~~of trust~~ under subsection (d) 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.
	200	+	(e) A custodian that receives a certification under subsection (d) 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.
189	201
190		-	(f) A custodian that acts in reliance on a certification ~~of trust~~ under subsection (d) of this section without knowledge that the representations contained in the certification ~~of trust~~ are incorrect is not liable to any person for so acting and may assume without inquiry the existence of facts stated in the certification ~~of trust~~.
	202	+	(f) A custodian that acts in reliance on a certification under subsection (d) of this section without knowledge that the representations contained in the certification are incorrect is not liable to any person for so acting and may assume without inquiry the existence of facts stated in the certification.
191	203
192		-	(g) A person that in good faith enters into a transaction in reliance on a certification ~~of trust~~ under subsection (d) of this section may enforce the transaction against the trust property as if the representations contained in the certification ~~of trust~~ were correct.
	204	+	(g) A person that in good faith enters into a transaction in reliance on a certification under subsection (d) of this section may enforce the transaction against the trust property as if the representations contained in the certification were correct.
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194		-	(h) A person that demands the trust instrument in addition to a certification ~~of trust~~ under subsection (d) of this section or excerpts under subsection (e) 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 ~~trust~~ instrument ~~or excerpts~~.
	206	+	(h) A person that demands the trust instrument in addition to a certification under subsection (d) of this section or excerpts under subsection (e) 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.
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196	208		(i) This section does not limit the right of a person to obtain a copy of a trust instrument in a court proceeding concerning the trust.
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198		-	Sec. 10. (NEW) (Effective October 1, 2015) A custodian and its officers, employees and agents are immune from liability for an act or omission done in good faith in compliance with sections 1 to 12, inclusive, of this act.
	210	+	Sec. 10. (NEW) (Effective October 1, 2015) A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good faith in compliance with sections 1 to 12, inclusive, of this act.
199	211
200	212		Sec. 11. (NEW) (Effective October 1, 2015) In applying and construing sections 1 to 12, inclusive, of 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.
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202		-	Sec. 12. (NEW) (Effective October 1, 2015) Sections 1 to 12, inclusive, of this act modify, limit or supersede the Electronic Signatures in Global and National Commerce Act, 15 USC 7001 et seq., but do not modify, limit or supersede Section 101(c) of said act, 15 USC 7001(c) or authorize electronic delivery of any of the notices described in Section 103(b) of said act, 15 USC 7003(b).
	214	+	Sec. 12. (NEW) (Effective October 1, 2015) Sections 1 to 12, inclusive, of this act modify, limit or supersede the Electronic Signatures in Global and National Commerce Act, 15 USC 7001 et seq., but does not modify, limit or supersede Section 101(c) of said act, 15 USC 7001(c) or authorize electronic delivery of any of the notices described in Section 103(b) of said act, 15 USC 7003(b).
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204	216		Sec. 13. Section 45a-334a of the general statutes is repealed. (Effective October 1, 2015)
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206	218
207	219
208	220
209	221		This act shall take effect as follows and shall amend the following sections:
210	222		Section 1 October 1, 2015 New section
211	223		Sec. 2 October 1, 2015 New section
212	224		Sec. 3 October 1, 2015 New section
213	225		Sec. 4 October 1, 2015 New section
214	226		Sec. 5 October 1, 2015 New section
215	227		Sec. 6 October 1, 2015 New section
216	228		Sec. 7 October 1, 2015 New section
217	229		Sec. 8 October 1, 2015 New section
218	230		Sec. 9 October 1, 2015 New section
219	231		Sec. 10 October 1, 2015 New section
220	232		Sec. 11 October 1, 2015 New section
221	233		Sec. 12 October 1, 2015 New section
222	234		Sec. 13 October 1, 2015 Repealer section
223	235
224	236		This act shall take effect as follows and shall amend the following sections:
225	237
226	238		Section 1
227	239
228	240		October 1, 2015
229	241
230	242		New section
231	243
232	244		Sec. 2
233	245
234	246		October 1, 2015
235	247
236	248		New section
237	249
238	250		Sec. 3
239	251
240	252		October 1, 2015
241	253
242	254		New section
243	255
244	256		Sec. 4
245	257
246	258		October 1, 2015
247	259
248	260		New section
249	261
250	262		Sec. 5
251	263
252	264		October 1, 2015
253	265
254	266		New section
255	267
256	268		Sec. 6
257	269
258	270		October 1, 2015
259	271
260	272		New section
261	273
262	274		Sec. 7
263	275
264	276		October 1, 2015
265	277
266	278		New section
267	279
268	280		Sec. 8
269	281
270	282		October 1, 2015
271	283
272	284		New section
273	285
274	286		Sec. 9
275	287
276	288		October 1, 2015
277	289
278	290		New section
279	291
280	292		Sec. 10
281	293
282	294		October 1, 2015
283	295
284	296		New section
285	297
286	298		Sec. 11
287	299
288	300		October 1, 2015
289	301
290	302		New section
291	303
292	304		Sec. 12
293	305
294	306		October 1, 2015
295	307
296	308		New section
297	309
298	310		Sec. 13
299	311
300	312		October 1, 2015
301	313
302	314		Repealer section
303	315
304		-	Statement of ~~Legislative Commissioners~~:
	316	+	Statement of Purpose:
305	317
306		-	~~Section 9 was amended~~ to ~~change "certification" to "certification of trust" for consistency, and section 9(h) was amended to add "or excerpts" for accuracy.~~
	318	+	To adopt the Connecticut Uniform Fiduciary Access to Digital Assets Act.
307	319
308		-
309		-
310		-	JUD Joint Favorable Subst. -LCO
311		-
312		-	JUD
313		-
314		-	Joint Favorable Subst. -LCO
	320	+	[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]