Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H1641 Compare Versions

Only one version of the bill is available at this time.

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1	1	1 of 1
2	2	HOUSE DOCKET, NO. 1772 FILED ON: 1/18/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 1641
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Jay D. Livingstone
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act for uniform fiduciary access to digital assets.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Jay D. Livingstone8th Suffolk1/18/2023 1 of 18
16	16	HOUSE DOCKET, NO. 1772 FILED ON: 1/18/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 1641
18	18	By Representative Livingstone of Boston, a petition (accompanied by bill, House, No. 1641) of
19	19	Jay D. Livingstone relative to uniform fiduciary access to digital assets. The Judiciary.
20	20	The Commonwealth of Massachusetts
21	21	_______________
22	22	In the One Hundred and Ninety-Third General Court
23	23	(2023-2024)
24	24	_______________
25	25	An Act for uniform fiduciary access to digital assets.
26	26	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
27	27	of the same, as follows:
28	28	1 SECTION 1. The General Laws are hereby amended by inserting after chapter 201F the
29	29	2following chapter:-
30	30	3 CHAPTER 201G. MASSACHUSETTS REVISED UNIFORM FIDUCIARY ACCESS
31	31	4TO DIGITAL ASSETS ACT
32	32	5 Section 1. Short title
33	33	6 This chapter may be cited as the Massachusetts Revised Uniform Fiduciary Access to
34	34	7Digital Assets Act.
35	35	8 Section 2. Definitions
36	36	9 In this chapter: 2 of 18
37	37	10 (1) “Account” means an arrangement under a terms-of-service agreement in which a
38	38	11custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides
39	39	12goods or services to the user.
40	40	13 (2) “Agent” means an attorney-in-fact granted authority under a durable or nondurable
41	41	14power of attorney.
42	42	15 (3) “Carries” means engages in the transmission of an electronic communication.
43	43	16 (4) “Catalogue of electronic communications” means information that identifies each
44	44	17person with which a user has had an electronic communication, the time and date of the
45	45	18communication, and the electronic address of the person.
46	46	19 (5) “Conservator” means a person appointed by a court to manage the estate of a
47	47	20protected person and includes a limited conservator, temporary conservator, special conservator,
48	48	21and those individuals specifically authorized under section 5-408 of chapter 190B.
49	49	22 (6) “Content of an electronic communication” means information concerning the
50	50	23substance or meaning of the communication which:
51	51	24 (A) has been sent or received by a user;
52	52	25 (B) is in electronic storage by a custodian providing an electronic-communication service
53	53	26to the public or is carried or maintained by a custodian providing a remote-computing service to
54	54	27the public; and
55	55	28 (C) is not readily accessible to the public.
56	56	29 (7) “Court” means the probate and family court department of the trial court. 3 of 18
57	57	30 (8) “Custodian” means a person that carries, maintains, processes, receives, or stores a
58	58	31digital asset of a user.
59	59	32 (9) “Designated recipient” means a person chosen by a user using an online tool to
60	60	33administer digital assets of the user.
61	61	34 (10) “Digital asset” means an electronic record in which an individual has a right or
62	62	35interest. The term does not include an underlying asset or liability unless the asset or liability is
63	63	36itself an electronic record.
64	64	37 (11) “Electronic” means relating to technology having electrical, digital, magnetic,
65	65	38wireless, optical, electromagnetic, or similar capabilities.
66	66	39 (12) “Electronic communication” has the meaning set forth in 18 U.S.C. section
67	67	402510(12), as amended.
68	68	41 (13) “Electronic-communication service” means a custodian that provides to a user the
69	69	42ability to send or receive an electronic communication.
70	70	43 (14) “Fiduciary” means an original, additional, or successor personal representative,
71	71	44conservator, agent, or trustee.
72	72	45 (15) “Information” means data, text, images, videos, sounds, codes, computer programs,
73	73	46software, databases, or the like.
74	74	47 (16) “Online tool” means an electronic service provided by a custodian that allows the
75	75	48user, in an agreement distinct from the terms-of-service agreement between the custodian and
76	76	49user, to provide directions for disclosure or nondisclosure of digital assets to a third person. 4 of 18
77	77	50 (17) “Person” means an individual, estate, business or nonprofit entity, public
78	78	51corporation, government or governmental subdivision, agency, or instrumentality, or other legal
79	79	52entity.
80	80	53 (18) “Personal representative” means an executor, administrator, special administrator, or
81	81	54person that performs substantially the same function under law of this commonwealth other than
82	82	55this chapter.
83	83	56 (19) “Power of attorney” means a record that grants an agent authority to act in the place
84	84	57of a principal.
85	85	58 (20) “Principal” means an individual who grants authority to an agent in a power of
86	86	59attorney.
87	87	60 (21) “Protected person” means an individual for whom a conservator has been appointed.
88	88	61The term includes an individual for whom a petition for the appointment of a conservator is
89	89	62pending.
90	90	63 (22) “Record” means information that is inscribed on a tangible medium or that is stored
91	91	64in an electronic or other medium and is retrievable in perceivable form.
92	92	65 (23) “Remote-computing service” means a custodian that provides to a user computer-
93	93	66processing services or the storage of digital assets by means of an electronic communications
94	94	67system, as defined in 18 U.S.C. section 2510(14), as amended.
95	95	68 (24) “Terms-of-service agreement” means an agreement that controls the relationship
96	96	69between a user and a custodian. 5 of 18
97	97	70 (25) “Trustee” means a fiduciary with legal title to property under an agreement or
98	98	71declaration that creates a beneficial interest in another. The term includes an original, additional,
99	99	72or successor trustee, whether or not appointed or confirmed by the court.
100	100	73 (26) “User” means a person that has an account with a custodian.
101	101	74 (27) “Will” includes a codicil, testamentary instrument that only appoints a personal
102	102	75representative, and an instrument that revokes or revises a testamentary instrument.
103	103	76 Section 3. Applicability
104	104	77 (a) This chapter applies to:
105	105	78 (1) a fiduciary acting under a will or power of attorney executed before, on, or after the
106	106	79effective date of this chapter;
107	107	80 (2) a personal representative acting for a decedent who died before, on, or after the
108	108	81effective date of this chapter;
109	109	82 (3) a conservatorship proceeding commenced before, on, or after the effective date of this
110	110	83chapter; and
111	111	84 (4) a trustee acting under a trust created before, on, or after the effective date of this
112	112	85chapter.
113	113	86 (b) This chapter applies to a custodian if the user resides in this commonwealth or resided
114	114	87in this commonwealth at the time of the user’s death.
115	115	88 (c) This chapter does not apply to a digital asset of an employer used by an employee in
116	116	89the ordinary course of the employer’s business. 6 of 18
117	117	90 Section 4. User direction for disclosure of digital assets
118	118	91 (a) A user may use an online tool to direct the custodian to disclose or not to disclose
119	119	92some or all of the user’s digital assets, including the content of electronic communications. If the
120	120	93online tool allows the user to modify or delete a direction at all times, a direction regarding
121	121	94disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of
122	122	95attorney, or other record.
123	123	96 (b) If a user has not used an online tool to give direction under subsection (a) or if the
124	124	97custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of
125	125	98attorney, or other record, disclosure to a fiduciary of some or all of the user’s digital assets,
126	126	99including the content of electronic communications sent or received by the user.
127	127	100 (c) A user’s direction under subsection (a) or (b) overrides a contrary provision in a
128	128	101terms-of-service agreement that does not require the user to act affirmatively and distinctly from
129	129	102the user’s assent to the terms of service.
130	130	103 Section 5. Terms-of-service agreement
131	131	104 (a) This chapter does not change or impair a right of a custodian or a user under a terms-
132	132	105of-service agreement to access and use digital assets of the user.
133	133	106 (b) This chapter does not give a fiduciary any new or expanded rights other than those
134	134	107held by the user for whom, or for whose estate, the fiduciary acts or represents.
135	135	108 (c) A fiduciary’s access to digital assets may be modified or eliminated by a user, by
136	136	109federal law, or by a terms-of-service agreement if the user has not provided direction under
137	137	110section 4. 7 of 18
138	138	111 Section 6. Procedure for disclosing digital assets
139	139	112 (a) When disclosing digital assets of a user under this chapter, the custodian may at its
140	140	113sole discretion:
141	141	114 (1) grant a fiduciary or designated recipient full access to the user’s account;
142	142	115 (2) grant a fiduciary or designated recipient partial access to the user’s account sufficient
143	143	116to perform the tasks with which the fiduciary or designated recipient is charged; or
144	144	117 (3) provide a fiduciary or designated recipient a copy in a record of any digital asset that,
145	145	118on the date the custodian received the request for disclosure, the user could have accessed if the
146	146	119user were alive and had full capacity and access to the account.
147	147	120 (b) A custodian may assess a reasonable administrative charge for the cost of disclosing
148	148	121digital assets under this chapter.
149	149	122 (c) A custodian need not disclose under this chapter a digital asset deleted by a user.
150	150	123 (d) If a user directs or a fiduciary requests a custodian to disclose under this chapter
151	151	124some, but not all, of the user’s digital assets, the custodian need not disclose the assets if
152	152	125segregation of the assets would impose an undue burden on the custodian. If the custodian
153	153	126believes the direction or request imposes an undue burden, the custodian or fiduciary may seek
154	154	127an order from the court to disclose:
155	155	128 (1) a subset limited by date of the user’s digital assets;
156	156	129 (2) all of the user’s digital assets to the fiduciary or designated recipient;
157	157	130 (3) none of the user’s digital assets; or 8 of 18
158	158	131 (4) all of the user’s digital assets to the court for review in camera.
159	159	132 Section 7. Disclosure of content of electronic communications of deceased user
160	160	133 If a deceased user consented or a court directs disclosure of the contents of electronic
161	161	134communications of the user, the custodian shall disclose to the personal representative of the
162	162	135estate of the user the content of an electronic communication sent or received by the user if the
163	163	136representative gives the custodian:
164	164	137 (1) a written request for disclosure in physical or electronic form;
165	165	138 (2) a certified copy of the death certificate of the user;
166	166	139 (3) an attested copy of the letter of appointment of the representative or a small-estate
167	167	140affidavit or court order;
168	168	141 (4) unless the deceased user provided direction using an online tool, a copy of the user’s
169	169	142will, trust, or other record evidencing the user’s consent to disclosure of the content of electronic
170	170	143communications; and
171	171	144 (5) if requested by the custodian:
172	172	145 (A) a number, username, address, or other unique subscriber or account identifier
173	173	146assigned by the custodian to identify the user’s account;
174	174	147 (B) evidence linking the account to the user; or
175	175	148 (C) a finding by the court that: 9 of 18
176	176	149 (i) the user had a specific account with the custodian, identifiable by the information
177	177	150specified in subparagraph (A);
178	178	151 (ii) disclosure of the content of electronic communications of the user would not violate
179	179	15218 U.S.C. section 2701 et seq., as amended, 47 U.S.C. section 222, as amended, or other
180	180	153applicable law;
181	181	154 (iii) unless the user provided direction using an online tool, the user consented to
182	182	155disclosure of the content of electronic communications; or
183	183	156 (iv) disclosure of the content of electronic communications of the user is reasonably
184	184	157necessary for administration of the estate.
185	185	158 Section 8. Disclosure of other digital assets of deceased user
186	186	159 Unless the deceased user prohibited disclosure of digital assets or the court directs
187	187	160otherwise, a custodian shall disclose to the personal representative of the estate of a deceased
188	188	161user a catalogue of electronic communications sent or received by the user and digital assets,
189	189	162other than the content of electronic communications, of the user, if the representative gives the
190	190	163custodian:
191	191	164 (1) a written request for disclosure in physical or electronic form;
192	192	165 (2) a certified copy of the death certificate of the user;
193	193	166 (3) an attested copy of the letter of appointment of the representative or a small-estate
194	194	167affidavit or court order; and
195	195	168 (4) if requested by the custodian: 10 of 18
196	196	169 (A) a number, username, address, or other unique subscriber or account identifier
197	197	170assigned by the custodian to identify the user’s account;
198	198	171 (B) evidence linking the account to the user;
199	199	172 (C) an affidavit stating that disclosure of the user’s digital assets is reasonably necessary
200	200	173for administration of the estate; or
201	201	174 (D) a finding by the court that:
202	202	175 (i) the user had a specific account with the custodian, identifiable by the information
203	203	176specified in subparagraph (A); or
204	204	177 (ii) disclosure of the user’s digital assets is reasonably necessary for administration of the
205	205	178estate.
206	206	179 Section 9. Disclosure of content of electronic communications of principal
207	207	180 To the extent a power of attorney expressly grants an agent authority over the content of
208	208	181electronic communications sent or received by the principal and unless directed otherwise by the
209	209	182principal or the court, a custodian shall disclose to the agent the content if the agent gives the
210	210	183custodian:
211	211	184 (1) a written request for disclosure in physical or electronic form;
212	212	185 (2) an original or copy of the power of attorney expressly granting the agent authority
213	213	186over the content of electronic communications of the principal;
214	214	187 (3) a certification by the agent, under penalty of perjury, that the power of attorney is in
215	215	188effect; and 11 of 18
216	216	189 (4) if requested by the custodian:
217	217	190 (A) a number, username, address, or other unique subscriber or account identifier
218	218	191assigned by the custodian to identify the principal’s account; or
219	219	192 (B) evidence linking the account to the principal.
220	220	193 Section 10. Disclosure of other digital assets of principal
221	221	194 Unless otherwise ordered by the court, directed by the principal, or provided by a power
222	222	195of attorney, a custodian shall disclose to an agent with specific authority over digital assets or
223	223	196general authority to act on behalf of a principal a catalogue of electronic communications sent or
224	224	197received by the principal and digital assets, other than the content of electronic communications,
225	225	198of the principal if the agent gives the custodian:
226	226	199 (1) a written request for disclosure in physical or electronic form;
227	227	200 (2) an original or a copy of the power of attorney that gives the agent specific authority
228	228	201over digital assets or general authority to act on behalf of the principal;
229	229	202 (3) a certification by the agent, under penalty of perjury, that the power of attorney is in
230	230	203effect; and
231	231	204 (4) if requested by the custodian:
232	232	205 (A) a number, username, address, or other unique subscriber or account identifier
233	233	206assigned by the custodian to identify the principal’s account; or
234	234	207 (B) evidence linking the account to the principal. 12 of 18
235	235	208 Section 11. Disclosure of digital assets held in trust when trustee is original user
236	236	209 Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose to
237	237	210a trustee that is an original user of an account any digital asset of the account held in trust,
238	238	211including a catalogue of electronic communications of the trustee and the content of electronic
239	239	212communications.
240	240	213 Section 12. Disclosure of contents of electronic communications held in trust when
241	241	214trustee is not original user
242	242	215 Unless otherwise ordered by the court, directed by the user, or provided in a trust, a
243	243	216custodian shall disclose to a trustee that is not an original user of an account the content of an
244	244	217electronic communication sent or received by an original or successor user and carried,
245	245	218maintained, processed, received, or stored by the custodian in the account of the trust if the
246	246	219trustee gives the custodian:
247	247	220 (1) a written request for disclosure in physical or electronic form;
248	248	221 (2) a certified copy of the trust instrument or a certification of the trust under chapter
249	249	222203E that includes consent to disclosure of the content of electronic communications to the
250	250	223trustee;
251	251	224 (3) a certification by the trustee, under penalty of perjury, that the trust exists and the
252	252	225trustee is a currently acting trustee of the trust; and
253	253	226 (4) if requested by the custodian:
254	254	227 (A) a number, username, address, or other unique subscriber or account identifier
255	255	228assigned by the custodian to identify the trust’s account; or 13 of 18
256	256	229 (B) evidence linking the account to the trust.
257	257	230 Section 13. Disclosure of other digital assets held in trust when trustee is not original user
258	258	231 Unless otherwise ordered by the court, directed by the user, or provided in a trust, a
259	259	232custodian shall disclose, to a trustee that is not an original user of an account, a catalogue of
260	260	233electronic communications sent or received by an original or successor user and stored, carried,
261	261	234or maintained by the custodian in an account of the trust and any digital assets, other than the
262	262	235content of electronic communications, in which the trust has a right or interest if the trustee gives
263	263	236the custodian:
264	264	237 (1) a written request for disclosure in physical or electronic form;
265	265	238 (2) a certified copy of the trust instrument or a certification of the trust under chapter
266	266	239203E;
267	267	240 (3) a certification by the trustee, under penalty of perjury, that the trust exists and the
268	268	241trustee is a currently acting trustee of the trust; and
269	269	242 (4) if requested by the custodian:
270	270	243 (A) a number, username, address, or other unique subscriber or account identifier
271	271	244assigned by the custodian to identify the trust’s account; or
272	272	245 (B) evidence linking the account to the trust.
273	273	246 Section 14. Disclosure of digital assets to conservator of protected person
274	274	247 (a) After an opportunity for a hearing under chapter 190B, the court may grant a
275	275	248conservator access to the digital assets of a protected person. 14 of 18
276	276	249 (b) Unless otherwise ordered by the court or directed by the user, a custodian shall
277	277	250disclose to a conservator the catalogue of electronic communications sent or received by a
278	278	251protected person and any digital assets, other than the content of electronic communications, in
279	279	252which the protected person has a right or interest if the conservator gives the custodian:
280	280	253 (1) a written request for disclosure in physical or electronic form;
281	281	254 (2) an attested copy of the court order that gives the conservator authority over the digital
282	282	255assets of the protected person; and
283	283	256 (3) if requested by the custodian:
284	284	257 (A) a number, username, address, or other unique subscriber or account identifier
285	285	258assigned by the custodian to identify the account of the protected person; or
286	286	259 (B) evidence linking the account to the protected person.
287	287	260 (c) A conservator with general authority to manage the assets of a protected person may
288	288	261request a custodian of the digital assets of the protected person to suspend or terminate an
289	289	262account of the protected person for good cause. A request made under this section must be
290	290	263accompanied by an attested copy of the court order giving the conservator authority over the
291	291	264protected person’s property.
292	292	265 Section 15. Fiduciary duty and authority
293	293	266 (a) The legal duties imposed on a fiduciary charged with managing tangible property
294	294	267apply to the management of digital assets, including:
295	295	268 (1) the duty of care; 15 of 18
296	296	269 (2) the duty of loyalty; and
297	297	270 (3) the duty of confidentiality.
298	298	271 (b) A fiduciary’s authority with respect to a digital asset of a user:
299	299	272 (1) except as otherwise provided in section 4, is subject to the applicable terms of service;
300	300	273 (2) is subject to other applicable law, including copyright law;
301	301	274 (3) is limited by the scope of the fiduciary’s duties; and
302	302	275 (4) may not be used to impersonate the user.
303	303	276 (c) A fiduciary with authority over the property of a decedent, protected person, principal,
304	304	277or settlor has the right to access any digital asset in which the decedent, protected person,
305	305	278principal, or settlor had a right or interest and that is not held by a custodian or subject to a
306	306	279terms-of-service agreement.
307	307	280 (d) A fiduciary acting within the scope of the fiduciary’s duties is an authorized user of
308	308	281the property of the decedent, protected person, principal, or settlor for the purpose of applicable
309	309	282computer-fraud and unauthorized-computer-access laws, including section 120F of chapter 266.
310	310	283 (e) A fiduciary with authority over the tangible, personal property of a decedent,
311	311	284protected person, principal, or settlor:
312	312	285 (1) has the right to access the property and any digital asset stored in it; and
313	313	286 (2) is an authorized user for the purpose of computer-fraud and unauthorized-computer-
314	314	287access laws, including section 120F of chapter 266. 16 of 18
315	315	288 (f) A custodian may disclose information in an account to a fiduciary of the user when the
316	316	289information is required to terminate an account used to access digital assets licensed to the user.
317	317	290 (g) A fiduciary of a user may request a custodian to terminate the user’s account. A
318	318	291request for termination must be in writing, in either physical or electronic form, and
319	319	292accompanied by:
320	320	293 (1) if the user is deceased, a certified copy of the death certificate of the user;
321	321	294 (2) an attested copy of the letter of appointment of the representative or a small-estate
322	322	295affidavit or court order, court order, power of attorney, or trust giving the fiduciary authority
323	323	296over the account; and
324	324	297 (3) if requested by the custodian:
325	325	298 (A) a number, username, address, or other unique subscriber or account identifier
326	326	299assigned by the custodian to identify the user’s account;
327	327	300 (B) evidence linking the account to the user; or
328	328	301 (C) a finding by the court that the user had a specific account with the custodian,
329	329	302identifiable by the information specified in subparagraph (A).
330	330	303 Section 16. Custodian compliance and immunity
331	331	304 (a) Not later than 60 days after receipt of the information required under sections 7
332	332	305through 14, a custodian shall comply with a request under this chapter from a fiduciary or
333	333	306designated recipient to disclose digital assets or terminate an account. If the custodian fails to 17 of 18
334	334	307comply, the fiduciary or designated recipient may apply to the court for an order directing
335	335	308compliance.
336	336	309 (b) An order under subsection (a) directing compliance must contain a finding that
337	337	310compliance is not in violation of 18 U.S.C. section 2702, as amended.
338	338	311 (c) A custodian may notify the user that a request for disclosure or to terminate an
339	339	312account was made under this chapter.
340	340	313 (d) A custodian may deny a request under this chapter from a fiduciary or designated
341	341	314recipient for disclosure of digital assets or to terminate an account if the custodian is aware of
342	342	315any lawful access to the account following the receipt of the fiduciary’s request.
343	343	316 (e) This chapter does not limit a custodian’s ability to obtain or require a fiduciary or
344	344	317designated recipient requesting disclosure or termination under this chapter to obtain a court
345	345	318order which:
346	346	319 (1) specifies that an account belongs to the protected person or principal;
347	347	320 (2) specifies that there is sufficient consent from the protected person or principal to
348	348	321support the requested disclosure; and
349	349	322 (3) contains a finding required by law other than this chapter.
350	350	323 (f) A custodian and its officers, employees, and agents are immune from liability for an
351	351	324act or omission done in good faith in compliance with this chapter.
352	352	325 Section 17. Uniformity of application and construction 18 of 18
353	353	326 In applying and construing this uniform act, consideration must be given to the need to
354	354	327promote uniformity of the law with respect to its subject matter among states that enact it.
355	355	328 Section 18. Relation to Electronic Signatures in Global and National Commerce Act
356	356	329 This chapter modifies, limits and supersedes the federal Electronic Signatures in Global
357	357	330and National Commerce Act, 15 U.S.C. section 7001, et seq., but does not modify, limit, or
358	358	331supersede section 101(c) of said act, 15 U.S.C. section 7001(c), or authorize electronic delivery
359	359	332of any of the notices described in section 103(b) of said act, 15 U.S.C. section 7003(b).
360	360	333 Section 19. Severability
361	361	334 If any provision of this chapter or its application to any person or circumstance is held
362	362	335invalid, the invalidity does not affect other provisions or applications of this chapter which can
363	363	336be given effect without the invalid provision or application, and to this end the provisions of this
364	364	337chapter are severable.
365	365	338 SECTION 2. This act shall take effect 1 year after its passage.