STATE OF NEW YORK
________________________________________________________________________
4895
2013-2014 Regular Sessions
IN SENATE
April 30, 2013
___________
Introduced by Sen. SAVINO -- read twice and ordered printed, and when
printed to be committed to the Committee on Judiciary
AN ACT to amend the estates, powers and trusts law, in relation to
establishing the "access to digital assets act"
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "access to
2 digital assets act".
3 § 2. Article 10 of the estates, powers and trusts law is amended by
4 adding a new part 11 to read as follows:
5 PART 11
6 ACCESS TO DIGITAL ASSETS
7 Section 10-11.1 Definitions.
8 10-11.2 Control of digital property of decedent by personal
9 representative.
10 10-11.3 Control of digital property of protected person by
11 conservator.
12 10-11.4 Control of digital property by agent under power of
13 attorney.
14 10-11.5 Control of digital property by trustee.
15 10-11.6 Recovery of digital property from custodian.
16 10-11.7 Objection to recovery of digital property by fiduciary.
17 10-11.8 Custodian immunity.
18 § 10-11.1 Definitions.
19 As used in this part, the following terms shall have the following
20 meanings:
21 (a) "Account holder" means a decedent, protected person, principal, or
22 settlor who has terms-of-service agreement with a custodian.
23 (b) "Agent" means an attorney-in-fact granted authority under a dura-
24 ble or nondurable power of attorney.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10200-01-3
S. 4895 2
1 (c) "Conservator" means a person that is appointed by a court to
2 manage the estate of an individual. The term includes a limited conser-
3 vator.
4 (d) "Custodian" means a person that electronically stores digital
5 property of an account holder or otherwise has control over digital
6 property of the account holder.
7 (e) "Digital account" means an electronic system for creating, gener-
8 ating, sending, receiving, storing, displaying, or processing informa-
9 tion which provides access to a digital asset or a digital service.
10 (f) "Digital asset" means information created, generated, sent, commu-
11 nicated, received, or stored by electronic means on a digital service or
12 digital device; the term includes a username, word, character, code, or
13 contract right under the terms-of-service agreement.
14 (g) "Digital device" means an electronic device that can receive,
15 store, process or send digital information.
16 (h) "Digital property" means the ownership and management of and
17 rights related to digital account and digital asset.
18 (i) "Digital service" means the delivery of digital information (such
19 as data or content) and transactional services (such as online forms and
20 benefits applications) across a variety of platforms, devices and deliv-
21 ery mechanisms (such as websites, mobile applications, and social
22 media).
23 (j) "Electronic" means relating to technology having electrical,
24 digital, magnetic, wireless, optical, electromagnetic, or similar capa-
25 bilities.
26 (k) "Governing instrument" means a will, trust, instrument creating or
27 exercising power of attorney, or other dispositive, appointive, or nomi-
28 native instrument of any similar type.
29 (l) "Information" means data, text, images, sounds, codes, computer
30 programs, software, databases, or the like.
31 (m) "Interested person" means heirs, devisees, children, spouses,
32 creditors, beneficiaries and any others having a property right in or
33 claim against a trust estate or the estate of a decedent, ward or
34 protected person which may be affected by the proceeding. It also
35 includes persons having priority for appointment as personal represen-
36 tative, and other fiduciaries representing interested persons. The
37 meaning as it relates to particular persons may vary from time to time
38 and must be determined according to the particular purposes of, and
39 matter involved in, any proceeding. In a conservatorship proceeding, it
40 also includes any governmental agency paying or planning to pay benefits
41 to the ward or protected person and any public or charitable agency that
42 regularly concerns itself with methods for preventing unnecessary or
43 overly intrusive court intervention in the affairs of persons for whom
44 protective orders may be sought and that seeks to participate in the
45 proceedings.
46 (n) "Principal" means an individual who grants authority to an agent
47 in a power of attorney.
48 (o) "Property" means anything that may be the subject of ownership,
49 and is real or personal property. The term includes digital property.
50 (p) "Protected person" means an individual for whom a protective order
51 has been made.
52 (q) "Protective order" means an order appointing a conservator or
53 another order related to management of a protected person's property.
54 (r) "Record" means information that is inscribed on a tangible medium
55 or that is stored in an electronic or other medium and is retrievable in
56 perceivable form.
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1 (s) "Terms-of-service agreement" means a contract that controls the
2 relationship between an account holder and a custodian. The term
3 includes a terms-of-use agreement.
4 (t) "Trustee" means a fiduciary with legal title to assets pursuant to
5 an agreement that creates a beneficial interest in others.
6 § 10-11.2 Control of digital property of decedent by personal represen-
7 tative
8 Except as a testator otherwise provided by will or until a court
9 otherwise orders, a personal representative, acting reasonably for the
10 benefit of the interested persons, may exercise control over the
11 decedent's digital property to the extent permitted under applicable law
12 and a terms-of-service agreement.
13 § 10-11.3 Control of digital property of protected person by conservator
14 (a) At the initial hearing on an application to appoint a conservator,
15 or later application by a conservator, the court may expressly authorize
16 the conservator to do one or more of the following, subject to the
17 provisions of the applicable terms-of-service agreement:
18 (1) exercise control over digital property of the protected person;
19 (2) exercise a right in digital property of the protected person; and
20 (3) change a governing instrument affecting the digital property of
21 the protected person.
22 (b) In authorizing a conservator's powers under paragraph (a) of this
23 section, the court shall consider the protected person's intent with
24 respect to those powers to the extent that intent can be ascertained.
25 § 10-11.4 Control of digital property by agent under power of attorney
26 If a power of attorney grants authority to an agent and exercise of
27 authority is not otherwise prohibited by a terms-of-service agreement or
28 a governing instrument to which the digital property of the principal is
29 subject, the agent may:
30 (a) exercise control over the digital property;
31 (b) exercise any right in the digital property; and
32 (c) change a governing instrument affecting the digital property.
33 § 10-11.5 Control of digital property by trustee
34 A trustee may exercise control over and rights in any digital property
35 according to the terms of the trust.
36 § 10-11.6 Recovery of digital property from custodian
37 (a) On receipt of a written request by a fiduciary with authority over
38 the digital property of another individual and an authorized user under
39 all applicable state and federal statutes, for access to digital proper-
40 ty, ownership of digital property, or a copy of a digital asset, a
41 custodian with control of the digital property or asset shall provide
42 the fiduciary the requested access, ownership, or copy, if the fiduciary
43 complies with paragraph (b) of this section.
44 (b) A request made pursuant to this section shall be in writing and
45 if:
46 (1) by a personal representative, the request must be accompanied by a
47 certified copy of the letter of appointment of the personal represen-
48 tative which grants authority over the digital property;
49 (2) by a conservator, the request must be accompanied by a certified
50 copy of the court order that gives the conservator authority over the
51 digital property;
52 (3) by an agent, the request must be accompanied by a certified copy
53 of the power of attorney that authorizes the agent to exercise authority
54 over the digital property; or
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1 (4) by a trustee, the request must be accompanied by a certified copy
2 of the trust instrument that authorizes the trustee to exercise authori-
3 ty over the digital property.
4 (c) A custodian shall comply not later than sixty days after receipt
5 of the request made under this section. If the custodian fails to
6 comply, the fiduciary may apply to the court for an order directing
7 compliance.
8 (d) A certified copy of a trust or power of attorney means a copy
9 accompanied by an affidavit by which the affiant attests that the copy
10 is a true, exact, complete and unaltered photocopy of the original, and
11 that to the best of the affiant's knowledge, said document remains in
12 full force and effect.
13 § 10-11.7 Objection to recovery of digital property by fiduciary
14 (a) An interested party may file with the court with jurisdiction over
15 the account holder or the fiduciary, a written objection to the
16 fiduciary's request for control over or the fiduciary's exercise of
17 continued control over digital property.
18 (b) On the filing of an objection under paragraph (a) of this section,
19 the court shall order a hearing on the objection at least fifteen days
20 and not later than sixty days after the filing.
21 (c) At a hearing under paragraph (b) of this section, the court shall
22 consider the objection and may order the fiduciary not to exercise
23 control or any other right over the digital property.
24 § 10-11.8 Custodian immunity
25 (a) A custodian is immune from liability for any action made in
26 compliance with section 10-11.6 of this part.
27 (b) A custodian acting in good faith is immune from civil liability
28 for the custodian's accidental destruction of any digital property
29 subject to this part.
30 § 3. This act shall take effect on the one hundred eightieth day after
31 it shall have become a law. Effective immediately, the addition, amend-
32 ment and/or repeal of any rule or regulation necessary for the implemen-
33 tation of this act on its effective date are authorized to be made and
34 completed on or before such effective date.
