Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S974 Compare Versions

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2	2	SENATE DOCKET, NO. 1822 FILED ON: 1/20/2023
3	3	SENATE . . . . . . . . . . . . . . No. 974
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Barry R. Finegold
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 relative to fiduciary access to digital assets.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :Barry R. FinegoldSecond Essex and Middlesex 1 of 18
16	16	SENATE DOCKET, NO. 1822 FILED ON: 1/20/2023
17	17	SENATE . . . . . . . . . . . . . . No. 974
18	18	By Mr. Finegold, a petition (accompanied by bill, Senate, No. 974) of Barry R. Finegold for
19	19	legislation relative to uniform fiduciary access to digital assets. The Judiciary.
20	20	[SIMILAR MATTER FILED IN PREVIOUS SESSION
21	21	SEE SENATE, NO. 1033 OF 2021-2022.]
22	22	The Commonwealth of Massachusetts
23	23	_______________
24	24	In the One Hundred and Ninety-Third General Court
25	25	(2023-2024)
26	26	_______________
27	27	An Act relative to fiduciary access to digital assets.
28	28	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
29	29	of the same, as follows:
30	30	1 SECTION 1. The General Laws are hereby amended by inserting after chapter 201F the
31	31	2following chapter:-
32	32	3 CHAPTER 201G. Massachusetts Fiduciary Access to Digital Assets Act
33	33	4 Section 1. Definitions
34	34	5 As used in this chapter, the following words shall have the following meanings, unless
35	35	6the context clearly requires otherwise:
36	36	7 “Account”, an arrangement under a terms-of-service agreement in which a custodian
37	37	8carries, maintains, processes, receives or stores a digital asset of the user or provides goods or
38	38	9services to the user. 2 of 18
39	39	10 “Agent”, an attorney-in-fact granted authority under a durable or nondurable power of
40	40	11attorney.
41	41	12 “Carries”, engages in the transmission of an electronic communication.
42	42	13 “Catalogue of electronic communications”, information that identifies each person with
43	43	14which a user has had an electronic communication, the time and date of the communication and
44	44	15the electronic address of such person.
45	45	16 “Conservator”, a person appointed by a court to manage the estate of a protected person
46	46	17and includes a limited conservator, temporary conservator, special conservator and those
47	47	18individuals specifically authorized under section 5-408 of chapter 190B.
48	48	19 “Content of an electronic communication”, information concerning the substance or
49	49	20meaning of the communication which:
50	50	21 (i) has been sent or received by a user;
51	51	22 (ii) is in electronic storage by a custodian providing an electronic-communication service
52	52	23to the public or is carried or maintained by a custodian providing a remote-computing service to
53	53	24the public; and
54	54	25 (iii) is not readily accessible to the public.
55	55	26 “Court”, the probate and family court department of the trial court.
56	56	27 “Custodian”, a person that carries, maintains, processes, receives or stores a digital asset
57	57	28of a user. 3 of 18
58	58	29 “Designated recipient”, a person chosen by a user using an online tool to administer
59	59	30digital assets of the user.
60	60	31 “Digital asset”, an electronic record in which an individual has a right or interest;
61	61	32provided, however, that “digital asset” shall not include an underlying asset or liability unless the
62	62	33asset or liability is itself an electronic record.
63	63	34 “Electronic”, relating to technology having electrical, digital, magnetic, wireless, optical,
64	64	35electromagnetic or similar capabilities.
65	65	36 “Electronic communication”, as set forth in 18 U.S.C. section 2510(12), as amended.
66	66	37 “Electronic-communication service”, a custodian that provides to a user the ability to
67	67	38send or receive an electronic communication.
68	68	39 “Fiduciary”, an original, additional or successor personal representative, conservator,
69	69	40agent or trustee.
70	70	41 “Information”, data, text, images, videos, sounds, codes, computer programs, software,
71	71	42databases or the like.
72	72	43 “Higher education institution”, a public or private institution of higher education,
73	73	44including, but not limited to, a college, community college, junior college, graduate school or
74	74	45university.
75	75	46 “Higher education institutional account”, an account of which the custodian is: (i) a
76	76	47higher education institution; or (ii) a custodian acting on behalf of a higher education institution. 4 of 18
77	77	48 “Online tool”, an electronic service provided by a custodian that allows the user, in an
78	78	49agreement distinct from the terms-of-service agreement between the custodian and user, to
79	79	50provide directions for disclosure or nondisclosure of digital assets to a third person.
80	80	51 “Person”, an individual, estate, business or nonprofit entity, public corporation,
81	81	52government or governmental subdivision, agency or instrumentality or other legal entity.
82	82	53 “Personal representative”, an executor, administrator, special administrator or person that
83	83	54performs substantially the same function under law of this commonwealth other than this
84	84	55chapter.
85	85	56 “Power of attorney”, a record that grants an agent authority to act in the place of a
86	86	57principal.
87	87	58 “Principal”, an individual who grants authority to an agent in a power of attorney.
88	88	59 “Protected person”, an individual for whom a conservator has been appointed; provided,
89	89	60however, that “protected person” shall include an individual for whom a petition for the
90	90	61appointment of a conservator is pending.
91	91	62 “Record”, information that is inscribed on a tangible medium or that is stored in an
92	92	63electronic or other medium and is retrievable in perceivable form.
93	93	64 “Remote-computing service”, a custodian that provides to a user computer-processing
94	94	65services or the storage of digital assets by means of an electronic communications system, as
95	95	66defined in 18 U.S.C. section 2510(14), as amended.
96	96	67 “Terms-of-service agreement”, an agreement that controls the relationship between a user
97	97	68and a custodian. 5 of 18
98	98	69 “Trustee”, a fiduciary with legal title to property under an agreement or declaration that
99	99	70creates a beneficial interest in another; provided, however, that "trustee" shall include an
100	100	71original, additional or successor trustee, whether or not appointed or confirmed by the court.
101	101	72 “User”, a person that has an account with a custodian.
102	102	73 “Will” shall include, but not be limited to, a codicil, testamentary instrument that only
103	103	74appoints a personal representative or an instrument that revokes or revises a testamentary
104	104	75instrument.
105	105	76 Section 2. Scope and Applicability
106	106	77 (a) This chapter shall apply to:
107	107	78 (i) a fiduciary acting under a will or power of attorney executed before, on or after the
108	108	79effective date of this chapter;
109	109	80 (ii) a personal representative acting for a decedent who died before, on or after the
110	110	81effective date of this chapter;
111	111	82 (iii) a conservatorship proceeding commenced before, on or after the effective date of this
112	112	83chapter; or
113	113	84 (iv) a trustee acting under a trust created before, on or after the effective date of this
114	114	85chapter.
115	115	86 (b) This chapter shall apply to a custodian if the user resides in this commonwealth or
116	116	87resided in this commonwealth at the time of the user’s death. 6 of 18
117	117	88 (c) This chapter shall not apply to a digital asset of an employer used by an employee in
118	118	89the ordinary course of the employer’s business; provided, however, that for the purposes of this
119	119	90chapter, an individual enrolled at a higher education institution shall not be considered an
120	120	91employee of the higher education institution with regard to any electronic communications or
121	121	92digital assets produced in the ordinary course of the individual’s course of study.
122	122	93 Section 3. User Direction for Disclosure of Digital Assets
123	123	94 (a) A user may use an online tool to direct the custodian to disclose or not to disclose
124	124	95some or all of the user’s digital assets, including the content of electronic communications. If the
125	125	96online tool allows the user to modify or delete a direction at all times, a direction regarding
126	126	97disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of
127	127	98attorney or other record.
128	128	99 (b) If a user has not used an online tool to give direction under subsection (a) or if the
129	129	100custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of
130	130	101attorney or other record, disclosure to a fiduciary of some or all of the user’s digital assets,
131	131	102including the content of electronic communications sent or received by the user.
132	132	103 (c) A user’s direction under subsection (a) or (b) of this section overrides a contrary
133	133	104provision in a terms-of-service agreement that does not require the user to act affirmatively and
134	134	105distinctly from the user’s assent to the terms of service.
135	135	106 Section 4. Terms-of-Service Agreement
136	136	107 (a) This chapter does not change or impair a right of a custodian or a user under a terms-
137	137	108of-service agreement to access and use the digital assets of the user. 7 of 18
138	138	109 (b) This chapter does not give a fiduciary any new or expanded rights other than those
139	139	110held by the user for whom, or for whose estate, the fiduciary acts or represents.
140	140	111 (c) A fiduciary’s access to digital assets may be modified or eliminated by a user by
141	141	112federal law or by a terms-of-service agreement if the user has not provided direction under
142	142	113section 3 of this chapter.
143	143	114 (d) Notwithstanding anything in this section to the contrary, if a user’s account is a higher
144	144	115education institutional account, a user’s assent to a terms-of-service agreement shall not be
145	145	116construed to constitute the user’s direction to prohibit the disclosure of the user's digital assets to
146	146	117a fiduciary upon or after the user's death.
147	147	118 Section 5. Procedure for Disclosing Digital Assets
148	148	119 (a) When disclosing the digital assets of a user under this chapter, the custodian may at its
149	149	120sole discretion:
150	150	121 (i) grant a fiduciary or designated recipient full access to the user’s account;
151	151	122 (ii) grant a fiduciary or designated recipient partial access to the user’s account sufficient
152	152	123to perform the tasks with which the fiduciary or designated recipient is charged; or
153	153	124 (iii) provide a fiduciary or designated recipient a copy in a record of any digital asset that,
154	154	125on the date the custodian received the request for disclosure, the user could have accessed if the
155	155	126user were alive and had full capacity and access to the account.
156	156	127 (b) A custodian may assess a reasonable administrative charge for the cost of disclosing
157	157	128digital assets under this chapter. 8 of 18
158	158	129 (c) A custodian shall not be required to disclose under this chapter a digital asset deleted
159	159	130by a user.
160	160	131 (d) If a user directs or a fiduciary requests a custodian to disclose under this chapter
161	161	132some, but not all, of the user’s digital assets, the custodian shall not be required to disclose the
162	162	133assets if segregation of the assets would impose an undue burden on the custodian. If the
163	163	134custodian believes the direction or request imposes an undue burden, the custodian or fiduciary
164	164	135may seek an order from the court to disclose:
165	165	136 (i) a subset limited by date of the user’s digital assets;
166	166	137 (ii) all of the user’s digital assets to the fiduciary or designated recipient;
167	167	138 (iii) none of the user’s digital assets; or
168	168	139 (iv) all of the user’s digital assets to the court for review in camera.
169	169	140 Section 6. Disclosure of Electronic Communications of Deceased User
170	170	141 (a) If a deceased user consented or a court directs disclosure of the contents of electronic
171	171	142communications of the user, the custodian shall disclose to the personal representative of the
172	172	143estate of the user the content of an electronic communication sent or received by the user if the
173	173	144representative gives to the custodian:
174	174	145 (i) a written request for disclosure in physical or electronic form;
175	175	146 (ii) a certified copy of the death certificate of the user;
176	176	147 (iii) an attested copy of the letter of appointment of the representative or a small-estate
177	177	148affidavit or court order; 9 of 18
178	178	149 (iv) unless the deceased user provided direction using an online tool, a copy of the user’s
179	179	150will, trust or other record evidencing the user’s consent to disclosure of the content of electronic
180	180	151communications; and
181	181	152 (v) if requested by the custodian:
182	182	153 (1) a number, username, address or other unique subscriber or account identifier assigned
183	183	154by the custodian to identify the user’s account;
184	184	155 (2) evidence linking the account to the user; or
185	185	156 (3) a finding by the court that:
186	186	157 (A) the user had a specific account with the custodian, identifiable by the information
187	187	158specified in paragraph (1);
188	188	159 (B) disclosure of the content of electronic communications of the user would not violate
189	189	16018 U.S.C. section 2701 et seq., as amended, 47 U.S.C. section 222, as amended, or other
190	190	161applicable law;
191	191	162 (C) unless the user provided direction using an online tool, the user consented to
192	192	163disclosure of the content of electronic communications; or
193	193	164 (D) disclosure of the content of electronic communications of the user is reasonably
194	194	165necessary for administration of the estate.
195	195	166 (b) Notwithstanding anything in this section to the contrary, unless the deceased user
196	196	167prohibited disclosure of digital assets or a court directs otherwise, the custodian shall disclose to 10 of 18
197	197	168the personal representative of the estate of the user the content of an electronic communication
198	198	169sent or received by the user if:
199	199	170 (i) the user’s account was a higher education institutional account;
200	200	171 (ii) the user was 25 years of age or younger at the time of their death; and
201	201	172 (iii) the representative gives to the custodian each of the records required pursuant to
202	202	173clauses (i) through (iii) of subsection (a) and requested pursuant to clause (v) of subsection (a);
203	203	174provided, however, that the representative shall not be required to give a record of the user’s
204	204	175consent to disclosure if such record does not exist.
205	205	176 (c) Unless the deceased user prohibited disclosure of digital assets or a court directs
206	206	177otherwise, a custodian shall disclose to the personal representative of the estate of a deceased
207	207	178user a catalogue of electronic communications sent or received by the user and digital assets,
208	208	179other than the content of electronic communications, of the user; provided, however, that the
209	209	180representative shall give to the custodian:
210	210	181 (1) each of the records required pursuant to clauses (i) through (iii) of subsection (a); and
211	211	182 (2) if requested by the custodian:
212	212	183 (A) a number, username, address or other unique subscriber or account identifier assigned
213	213	184by the custodian to identify the user’s account;
214	214	185 (B) evidence linking the account to the user;
215	215	186 (C) a finding by the court that the user had a specific account with the custodian,
216	216	187identifiable by the information specified in subparagraph (A); or 11 of 18
217	217	188 (D) an affidavit or a finding by the court stating that disclosure of the user’s digital assets
218	218	189is reasonably necessary for administration of the estate.
219	219	190 Section 7. Disclosure of Digital Assets of Principal
220	220	191 (a) Unless otherwise ordered by the court, directed by the principal or provided by a
221	221	192power of attorney, a custodian shall disclose to an agent with specific authority over digital
222	222	193assets or general authority to act on behalf of a principal a catalogue of electronic
223	223	194communications sent or received by the principal and digital assets, other than the content of
224	224	195electronic communications, of the principal if the agent gives to the custodian:
225	225	196 (i) a written request for disclosure in physical or electronic form;
226	226	197 (ii) an original or a copy of the power of attorney that gives the agent specific authority
227	227	198over digital assets or general authority to act on behalf of the principal;
228	228	199 (iii) a certification by the agent, under penalty of perjury, that the power of attorney is in
229	229	200effect; and
230	230	201 (iv) if requested by the custodian:
231	231	202 (1) a number, username, address or other unique subscriber or account identifier assigned
232	232	203by the custodian to identify the principal’s account; or
233	233	204 (2) evidence linking the account to the principal.
234	234	205 (b) To the extent a power of attorney expressly grants an agent authority over the content
235	235	206of electronic communications sent or received by the principal and unless directed otherwise by 12 of 18
236	236	207the principal or the court, a custodian shall disclose to the agent the content if the agent gives to
237	237	208the custodian:
238	238	209 (i) each of the records required pursuant to clauses (i) and (iii) of subsection (a) and
239	239	210requested pursuant to clause (iv) of subsection (a); and
240	240	211 (ii) an original or a copy of the power of attorney expressly granting the agent authority
241	241	212over the content of electronic communications of the principal.
242	242	213 Section 8. Disclosure of Digital Assets Held in Trust
243	243	214 (a) Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose
244	244	215to a trustee that is an original user of an account any digital asset of the account held in trust,
245	245	216including a catalogue of electronic communications of the trustee and the content of electronic
246	246	217communications.
247	247	218 (b) Unless otherwise ordered by the court, directed by the user or provided in a trust, a
248	248	219custodian shall disclose to a trustee that is not an original user of an account the content of an
249	249	220electronic communication sent or received by an original or successor user and carried,
250	250	221maintained, processed, received or stored by the custodian in the account of the trust if the
251	251	222trustee gives to the custodian:
252	252	223 (i) a written request for disclosure in physical or electronic form;
253	253	224 (ii) a certified copy of the trust instrument or a certification of the trust under chapter
254	254	225203E; provided, however, that such copy shall include the original user’s consent to disclosure of
255	255	226the content of electronic communications to the trustee, unless the original user’s account was a 13 of 18
256	256	227higher education institutional account and the original user was 25 years of age or younger at the
257	257	228time of their death;
258	258	229 (iii) a certification by the trustee, under penalty of perjury, that the trust exists and the
259	259	230trustee is a currently acting trustee of the trust; and
260	260	231 (iv) if requested by the custodian:
261	261	232 (1) a number, username, address or other unique subscriber or account identifier assigned
262	262	233by the custodian to identify the trust’s account; or
263	263	234 (2) evidence linking the account to the trust.
264	264	235 (c) Unless otherwise ordered by the court, directed by the user or provided in a trust, a
265	265	236custodian shall disclose, to a trustee that is not an original user of an account, a catalogue of
266	266	237electronic communications sent or received by an original or successor user and stored, carried
267	267	238or maintained by the custodian in an account of the trust and any digital assets, other than the
268	268	239content of electronic communications, in which the trust has a right or interest if the trustee gives
269	269	240to the custodian: (1) each of the records required pursuant to clause (i) and (iii) of subsection (b)
270	270	241and requested pursuant to clause (iv) of subsection (b); and (2) a certified copy of the trust
271	271	242instrument or a certification of the trust under chapter 203E.
272	272	243 Section 9. Disclosure of Digital Assets to Conservator of Protected Person
273	273	244 (a) After an opportunity for a hearing under chapter 190B, the court may grant a
274	274	245conservator access to the digital assets of a protected person.
275	275	246 (b) Unless otherwise ordered by the court or directed by the user, a custodian shall
276	276	247disclose to a conservator the catalogue of electronic communications sent or received by a 14 of 18
277	277	248protected person and any digital assets, other than the content of electronic communications, in
278	278	249which the protected person has a right or interest if the conservator gives to the custodian:
279	279	250 (i) a written request for disclosure in physical or electronic form;
280	280	251 (ii) an attested copy of the court order that gives the conservator authority over the digital
281	281	252assets of the protected person; and
282	282	253 (iii) if requested by the custodian:
283	283	254 (1) a number, username, address or other unique subscriber or account identifier assigned
284	284	255by the custodian to identify the account of the protected person; or
285	285	256 (2) evidence linking the account to the protected person.
286	286	257 (c) A conservator with general authority to manage the assets of a protected person may
287	287	258request a custodian of the digital assets of the protected person to suspend or terminate an
288	288	259account of the protected person for good cause. A request made under this section shall be
289	289	260accompanied by an attested copy of the court order giving the conservator authority over the
290	290	261protected person’s property.
291	291	262 Section 10. Fiduciary Duty and Authority
292	292	263 (a) The legal duties imposed on a fiduciary charged with managing tangible property
293	293	264apply to the management of digital assets, including:
294	294	265 (i) the duty of care;
295	295	266 (ii) the duty of loyalty; and 15 of 18
296	296	267 (iii) the duty of confidentiality.
297	297	268 (b) A fiduciary’s authority with respect to a digital asset of a user:
298	298	269 (i) except as otherwise provided in sections 3 or 4 of this chapter, is subject to the
299	299	270applicable terms-of-service agreement;
300	300	271 (ii) is subject to other applicable law, including copyright law;
301	301	272 (iii) is limited by the scope of the fiduciary’s duties; and
302	302	273 (iv) shall not be used to impersonate the user.
303	303	274 (c) A fiduciary with authority over the property of a decedent, protected person, principal
304	304	275or settlor has the right to access any digital asset in which the decedent, protected person,
305	305	276principal or settlor had a right or interest and that is not held by a custodian or subject to a terms-
306	306	277of-service agreement.
307	307	278 (d) A fiduciary acting within the scope of the fiduciary’s duties is an authorized user of
308	308	279the property of the decedent, protected person, principal or settlor for the purpose of applicable
309	309	280computer-fraud and unauthorized-computer-access laws, including section 120F of chapter 266.
310	310	281 (e) A fiduciary with authority over the tangible, personal property of a decedent,
311	311	282protected person, principal or settlor:
312	312	283 (i) has the right to access the property and any digital asset stored in it; and
313	313	284 (ii) is an authorized user for the purpose of computer-fraud and unauthorized-computer-
314	314	285access laws, including section 120F of chapter 266. 16 of 18
315	315	286 (f) A custodian may disclose information in an account to a fiduciary of the user when the
316	316	287information is required to terminate an account used to access digital assets licensed to the user.
317	317	288 (g) A fiduciary of a user may request a custodian to terminate the user’s account. A
318	318	289request for termination shall be in writing, in either physical or electronic form, and accompanied
319	319	290by:
320	320	291 (i) if the user is deceased, a certified copy of the death certificate of the user;
321	321	292 (ii) an attested copy of the letter of appointment of the representative or a small-estate
322	322	293affidavit or court order, court order, power of attorney or trust giving the fiduciary authority over
323	323	294the account; and
324	324	295 (iii) if requested by the custodian:
325	325	296 (1) a number, username, address or other unique subscriber or account identifier assigned
326	326	297by the custodian to identify the user’s account;
327	327	298 (2) evidence linking the account to the user; or
328	328	299 (3) a finding by the court that the user had a specific account with the custodian,
329	329	300identifiable by the information specified in paragraph (1).
330	330	301 Section 16. Custodian Compliance and Immunity
331	331	302 (a) Not later than 60 days after receipt of the information required under sections 6
332	332	303through 9 of this chapter, a custodian shall comply with a request under this chapter from a
333	333	304fiduciary or designated recipient to disclose digital assets or terminate an account. If the 17 of 18
334	334	305custodian fails to comply, the fiduciary or designated recipient may apply to the court for an
335	335	306order directing compliance.
336	336	307 (b) An order under subsection (a) of this section directing compliance shall contain a
337	337	308finding that compliance is not in violation of 18 U.S.C. section 2702, as amended.
338	338	309 (c) A custodian may notify the user that a request for disclosure or to terminate an
339	339	310account was made under this chapter.
340	340	311 (d) A custodian may deny a request under this chapter from a fiduciary or designated
341	341	312recipient for disclosure of digital assets or to terminate an account if the custodian is aware of
342	342	313any lawful access to the account following the receipt of the fiduciary’s request.
343	343	314 (e) This chapter does not limit a custodian’s ability to obtain or require a fiduciary or
344	344	315designated recipient requesting disclosure or termination under this chapter to obtain a court
345	345	316order which:
346	346	317 (i) specifies that an account belongs to the protected person or principal;
347	347	318 (ii) specifies that there is sufficient consent from the protected person or principal to
348	348	319support the requested disclosure; and
349	349	320 (iii) contains a finding required by law other than this chapter.
350	350	321 (f) A custodian and its officers, employees and agents are immune from liability for an
351	351	322act or omission done in good faith in compliance with this chapter.
352	352	323 Section 17. Severability 18 of 18
353	353	324 If any provision of this chapter or its application to any person or circumstance is held
354	354	325invalid, the invalidity shall not affect other provisions or applications of this chapter which can
355	355	326be given effect without the invalid provision or application, and to this end the provisions of this
356	356	327chapter are severable.
357	357	328 SECTION 2. Chapter 201G of the General Laws shall take effect 1 year after the passage
358	358	329of this act.