SENATE BILL 59

52nd legislature - STATE OF NEW MEXICO - first session, 2015

INTRODUCED BY

Peter Wirth

FOR THE COURTS, CORRECTIONS AND JUSTICE COMMITTEE

AN ACT

RELATING TO ELECTRONIC RECORDS; ENACTING THE UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Uniform Fiduciary Access to Digital Assets Act".

     SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Uniform Fiduciary Access to Digital Assets Act:

          A. "account holder" means a person that has entered into a terms-of-service agreement with a custodian or a fiduciary for the person;

          B. "agent" means a person granted authority to act for a principal under a power of attorney whether the person is denominated an agent, attorney in fact or otherwise;

          C. "carries" means engages in the transmission of electronic communications;

          D. "catalogue 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;

          E. "conservator" means a person appointed by a court to manage the estate of a protected person. The term includes a limited conservator;

          F. "content of an electronic communication" means information concerning the substance or meaning of the communication that:

                (1) has been sent or received by an account holder;

                (2) is in electronic storage by a custodian providing an electronic-communication service to the public or is carried or maintained by a custodian providing a remote- computing service to the public; and

                (3) is not readily accessible to the public;

          G. "court" means the district court;

          H. "custodian" means a person that carries, maintains, processes, receives or stores a digital asset of an account holder;

          I. "digital asset" means a record that is electronic. The term does not include an underlying asset or liability unless the asset or liability is itself a record that is electronic;

          J. "durable", with reference to a power of attorney, means not terminated by the principal's incapacity;

          K. "electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities;

          L. "electronic communication" has the meaning as specified in 18 U.S.C. Section 2510(12);

          M. "electronic-communication service" means a custodian that provides to an account holder the ability to send or receive an electronic communication;

          N. "fiduciary" includes an original, additional, successor or co-personal representative, conservator, agent or trustee;

          O. "governing instrument" means a will, trust, power of attorney or other dispositive, appointive or nominative instrument of a similar type;

          P. "incapacity" has the meaning specified in Section 45-5B-102 NMSA 1978;

          Q. "information" means data, text, images, videos, sounds, codes, computer programs, software, databases or the like;

          R. "person" means an individual, estate, trust, business or nonprofit entity, public corporation, government or governmental subdivision, agency or instrumentality or other legal entity;

          S. "personal representative" means an executor, administrator, special administrator, personal representative or person that performs substantially the same function under law of this state other than the Uniform Fiduciary Access to Digital Assets Act;

          T. "power of attorney" means a record that grants an agent authority to act in the place of a principal whether or not the term "power of attorney" is used. The term includes a durable and nondurable power of attorney;

          U. "principal" means an individual who grants authority to an agent in a power of attorney;

          V. "property" or "asset" means anything that may be the subject of ownership, whether real or personal, tangible or intangible or legal or equitable, or any interest or right therein;

          W. "protected person" means an individual for whom a conservator has been appointed;

          X. "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;

          Y. "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 the term "electronic communications system" is defined in 18 U.S.C. Section 2510(14);

          Z. "settlor" means a person, including a testator, who creates or contributes property to a trust. If more than one person creates or contributes property to a trust, each person is a settlor of the portion of the trust property attributable to that person's contribution, except to the extent another person has the power to revoke or withdraw that portion;

          AA. "terms-of-service agreement" means an agreement that controls the relationship between an account holder and a custodian;

          BB. "terms of a trust" means the manifestation of the settlor's intent regarding a trust's provisions as expressed in the trust instrument or as may be established by other evidence that would be admissible in a judicial proceeding;

          CC. "trust instrument" means an instrument executed by the settlor that contains terms of the trust, including any amendments thereto;

          DD. "trustee" means a fiduciary with legal title to property pursuant to a trust instrument that provides for a beneficial interest in another; and

          EE. "will" includes a codicil, testamentary instrument that only appoints a personal representative and an instrument that revokes or revises another testamentary instrument.

     SECTION 3. [NEW MATERIAL] APPLICABILITY.--

          A. The Uniform Fiduciary Access to Digital Assets Act applies to:

                (1) a personal representative or agent acting under a will or power of attorney executed before, on or after January 1, 2016;

                (2) a personal representative acting for a decedent who died before, on or after January 1, 2016;

                (3) a conservatorship proceeding, whether pending in a court or commenced before, on or after January 1, 2016; and

                (4) a trustee acting under a trust created before, on or after January 1, 2016.

          B. The Uniform Fiduciary Access to Digital Assets Act does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer's business.

     SECTION 4. [NEW MATERIAL] ACCESS BY PERSONAL REPRESENTATIVE TO DIGITAL ASSET OF DECEDENT.--Subject to Subsection B of Section 8 of the Uniform Fiduciary Access to Digital Assets Act and unless otherwise ordered by the court or provided in the will of a decedent, the personal representative of the decedent has the right to access:

          A. the content of an electronic communication that the custodian is permitted to disclose under the federal Electronic Communications Privacy Act of 1986, as amended, 18 U.S.C. Section 2702(b);

          B. any catalogue of electronic communications sent or received by the decedent; and

          C. any other digital asset in which at death the decedent had a right or interest.

     SECTION 5. [NEW MATERIAL] ACCESS BY CONSERVATOR TO DIGITAL ASSET OF PROTECTED PERSON.--Subject to Subsection B of Section 8 of the Uniform Fiduciary Access to Digital Assets Act, the court, after an opportunity for hearing pursuant to Chapter 45, Article 5 NMSA 1978, may grant a conservator the right to access:

          A. the content of an electronic communication that the custodian is permitted to disclose under the federal Electronic Communications Privacy Act of 1986, as amended, 18 U.S.C. Section 2702(b);

          B. any catalogue of electronic communications sent or received by the protected person; and

          C. any other digital asset in which the protected person has a right or interest.

     SECTION 6. [NEW MATERIAL] ACCESS BY AGENT TO DIGITAL ASSET OF PRINCIPAL.--

          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 Subsection B of Section 8 of the Uniform Fiduciary Access to Digital Assets Act, the agent has the right to access the content of an electronic communication that the custodian is permitted to disclose under the federal Electronic Communications Privacy Act of 1986, as amended, 18 U.S.C. Section 2702(b).

          B. Subject to Subsection B of Section 8 of the Uniform Fiduciary Access to Digital Assets Act and unless otherwise ordered by the court or provided by a power of attorney, an agent has the right to access:

                (1) any catalogue of electronic communications sent or received by the principal; and

                (2) any other digital asset in which the principal has a right or interest.

     SECTION 7. [NEW MATERIAL] ACCESS BY TRUSTEE TO DIGITAL ASSET.--

          A. Subject to Subsection B of Section 8 of the Uniform Fiduciary Access to Digital Assets Act and unless otherwise ordered by the court or provided in a trust, a trustee that is an original account holder has the right to access any digital asset held in trust, including any catalogue of electronic communications of the trustee and the content of an electronic communication.

          B. Subject to Subsection B of Section 8 of the Uniform Fiduciary Access to Digital Assets Act and unless otherwise ordered by the court or provided in a trust, a trustee that is not an original account holder has the right to access:

                (1) the content of an electronic communication that the custodian is permitted to disclose under the federal Electronic Communications Privacy Act of 1986, as amended, 18 U.S.C. Section 2702(b);

                (2) any catalogue of electronic communications sent or received by the original or any successor account holder; and

                (3) any other digital asset in which the original or any successor account holder has a right or interest.

     SECTION 8. [NEW MATERIAL] FIDUCIARY AUTHORITY.--

          A. A fiduciary that is an account holder or has the right under the Uniform Fiduciary Access to Digital Assets Act to access a digital asset of an account holder:

                (1) subject to the terms-of-service agreement, copyright law and other applicable law, may take any action concerning the asset to the extent of the account holder's authority and the fiduciary's power under:

                     (a) the law of this state other than the Uniform Fiduciary Access to Digital Assets Act; and

                     (b) the governing instrument;

                (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

                (3) is, for the purpose of applicable computer fraud and unauthorized computer access laws, an authorized user.

          B. Unless an account holder, after January 1, 2016, 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:

                (1) the provision is void as against the strong public policy of this state; and

                (2) the fiduciary's access under the Uniform Fiduciary Access to Digital Assets 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.

          C. A choice of law provision in a terms-of-service agreement is unenforceable against a fiduciary acting under the Uniform Fiduciary Access to Digital Assets 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.

          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, protected person, principal or settlor:

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

                (2) is an authorized user for purposes of any applicable computer fraud and unauthorized computer access laws.

     SECTION 9. [NEW MATERIAL] COMPLIANCE.--

          A. If a fiduciary with a right under the Uniform Fiduciary Access to Digital Assets 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:

                (1) access to the asset;

                (2) control of the asset; and

                (3) a copy of the asset to the extent permitted by copyright law.

          B. If a request under Subsection A of this section is made by:

                (1) a personal representative with the right of access under Section 4 of the Uniform Fiduciary Access to Digital Assets Act, the request shall be accompanied by a certified copy of letters testamentary, letters of administration, affidavit pursuant to Section 45-3-1201 or 45-3-1205 NMSA 1978, closing statement pursuant to Section 45-3-1204 NMSA 1978 or court order;

                (2) a conservator with the right of access under Section 5 of the Uniform Fiduciary Access to Digital Assets Act, the request shall be accompanied by a certified copy of the court order that gives the conservator authority over the digital asset;

                (3) an agent with the right of access under Section 6 of the Uniform Fiduciary Access to Digital Assets Act, the request shall be accompanied by a certified copy of the power of attorney that authorizes the agent to exercise authority over the digital asset and a certification or affirmation of the agent, under penalty of perjury, that the power of attorney is in effect; and

                (4) a trustee with the right of access under Section 7 of the Uniform Fiduciary Access to Digital Assets Act, the request shall be accompanied by a certified copy of the trust instrument, or a certification of the trust under Section 46A-10-1013 NMSA 1978, that authorizes the trustee to exercise authority over the digital asset.

          C. A custodian shall comply with a request made under Subsection A of this section not later than sixty days after receipt. If the custodian fails to comply, the fiduciary may apply to the court for an order directing compliance.

          D. This section does not limit the right of a person to obtain a copy of a trust instrument in a judicial proceeding concerning the trust.

     SECTION 10. [NEW MATERIAL] CUSTODIAN IMMUNITY.--A custodian and its officers, employees and agents are immune from liability for an act or omission done in good faith in compliance with the Uniform Fiduciary Access to Digital Assets Act.

     SECTION 11. [NEW MATERIAL] UNIFORMITY OF APPLICATION AND CONSTRUCTION.--In applying and construing the Uniform Fiduciary Access to Digital Assets Act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

     SECTION 12. [NEW MATERIAL] RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT.--The Uniform Fiduciary Access to Digital Assets Act modifies, limits or supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not modify, limit or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).

     SECTION 13. EFFECTIVE DATE.--The effective date of the provisions of this act is January 1, 2016.

- 13 -