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  • NJ A3433
  • "Uniform Fiduciary Access to Digital Assets Act"; authorizes executor, agent, guardian, or trustee, under certain circumstances, to manage electronic records of decedent, principal, incapacitated person, or trust creator.
Introduced
(3/7/2016)
In Committee
(6/26/2017)
Crossed Over
(6/29/2017)
Passed
(7/31/2017)
Signed
(9/13/2017)
Dead/Failed/Vetoed
2016-2017 Regular Session
This bill would enact the "Uniform Fiduciary Access to Digital Assets Act" (UFADAA). The act was promulgated by the Uniform Law Commission in 2014 and revised by the commission in 2015. Summary Under the UFADAA, the traditional power of a fiduciary to manage a person's tangible property when that person dies or loses the ability to manage his own property would be extended to allow the fiduciary to manage digital assets. The act defines the term "digital assets" to mean a person's digital property and electronic communications. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record. The UFADAA allows fiduciaries to manage digital property, such as computer files, web domains, and virtual currency, but restricts a fiduciary's access to electronic communications such as email, text messages, and social media accounts unless the original user consented in a will, trust, power of attorney, or other record. The act encompasses four types of fiduciaries: (1) executors or administrators of deceased persons' estates; (2) court-appointed guardians of incapacitated persons; (3) agents appointed under powers of attorney; and (4) trustees. The act would not apply to digital assets of an employer used by an employee during the ordinary course of business. The act distinguishes between a "catalogue of electronic communications" (information that identifies each person with which a user has had an electronic communication, and the time and date of that communication) and the "content of an electronic communication" (information concerning the substance or meaning of the communication). The act provides that generally a fiduciary would have access to a catalogue of the user's communications, but not the content, unless the user consented to the disclosure of the content. Under the act, a "custodian" is a person or entity that carries, maintains, processes, receives, or stores digital assets. The act provides that if a custodian provides an "online tool," separate from the general terms of service, that allows the user to name another person to have access to the user's digital assets or to direct the custodian to delete the user's digital assets, the user's online instructions would be enforceable. If the custodian does not provide an online tool or if the user declines to use the online tool provided, the user may give directions for the disposition of digital assets in a will, trust, power of attorney, or other written record. If the user has not provided any direction, either online or in an estate plan, the terms of service for the user's account would determine whether a fiduciary may access the user's digital assets. If the terms of service do not address fiduciary access, the default rules of the UFADAA would apply. Under the UFADAA, fiduciaries for digital assets would be subject to the same fiduciary duties that normally apply to tangible assets. Thus, for example, an executor would not be authorized to publish the decedent's confidential communications or impersonate the decedent by sending email from the decedent's account. A fiduciary's management of digital assets may also be limited by other law. For example, a fiduciary may not copy or distribute digital files in violation of copyright law, and may not exceed the user's authority under the account's terms of service. In order to gain access to digital assets, a fiduciary would be required to send a request to the custodian, accompanied by a copy of the document granting fiduciary authority, such as a letter of appointment, court order, or certification of trust. Under the bill, custodians of digital assets would be immune from any liability for an act or omission done in good faith in compliance with the act. Specific Sections Section 1: Designates the bill as the "Uniform Fiduciary Access to Digital Assets Act." Section 2: Sets out definitions of terms. Section 3: Provides that the act applies to a custodian if the user resides in this State or resided in this State at the time of the user's death, and provides that the 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: Sets out procedures concerning the use of an online tool to designate disclosure or non-disclosure of the user's digital assets. Section 5: Establishes that the terms-of-service agreement governing an online account applies to fiduciaries as well as users, and clarifies that a fiduciary or designated recipient would not have any new or expanded rights other than those held by the user. Section 6: Gives the custodians of digital assets some discretion in determining disclosure of digital assets to fiduciaries. This section provides that a custodian may, for example, comply with a request for access by allowing the fiduciary to reset the password and access the user's account. Under the act, a custodian may also comply without giving access to a user's account by simply giving a copy of all the user's digital assets to the fiduciary. This section also allows the custodian to assess a reasonable administrative charge for the cost of disclosing digital assets. Sections 7-14: Establishes the rights of personal representatives of an estate, guardians, agents acting pursuant to a power of attorney, and trustees. Each of the fiduciaries is subject to different rules for the content of communications protected under federal privacy laws and for other types of digital assets. Section 15: Provides that the legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including the duty of care, the duty of loyalty, and the duty of confidentiality. Section 15 also provides that, except as otherwise provided in section 4 of the act concerning online tools, a fiduciary's authority with respect to a digital asset is subject to the applicable terms of service, is subject to other applicable law, including copyright law, and may not be used to impersonate the user. This section also authorizes a fiduciary to request a custodian to terminate the use's account and sets out the documentation that must accompany such a request, such as a copy of the death certificate, court order, power of attorney, or trust. Section 16: Requires the custodian to comply with a request from a fiduciary within 60 days after receipt. If the custodian fails to comply, the fiduciary or designated recipient may apply to the court for an order directing compliance. (A "designated recipient" is a person chosen by the user, using an online tool, to administer the user's digital assets.) Section 16 also allows a custodian to deny a request from a fiduciary or designated recipient for disclosure of digital assets or to terminate an account if the custodian is aware of any lawful access to the account following the receipt of the fiduciary's request. This provision is intended to protect joint owners of the account. Section 17: Provides that in applying and construing 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. Section 18: Provides that the 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 19: provides that the act will take effect on the 90th day following enactment and would apply retroactively: the act would encompass a fiduciary acting under a will or power of attorney executed before, on, or after the effective date of the act; a personal representative acting for a decedent who died before, on, or after the effective date; a guardianship, whether the guardian was appointed before, on, or after the effective date; and a trustee acting under a trust created before, on, or after the effective date.
Judiciary, 2nd Reading in Assembly to Concur with Senate Amendments, 2nd Reading in the Assembly, 2nd Reading in the Senate, Bills and Joint Resolutions Signed by the Governor, Passed Assembly, Passed both Houses, Passed Senate
Approved P.L.2017, c.237.  (on 9/13/2017)
 
 

Date Chamber Action Description
9/13/2017 A Approved P.L.2017, c.237.
7/31/2017 A Passed Assembly (Passed Both Houses) (68-0-0)
7/13/2017 A Received in the Assembly, 2nd Reading on Concurrence
6/29/2017 S Passed by the Senate (35-0)
6/29/2017 S Substituted for S2527 (1R)
6/26/2017 S Reported from Senate Committee with Amendments, 2nd Reading
6/26/2017 Senate Judiciary Hearing (19:00 6/26/2017 *Revised 6/23/17 Nominees added. Lorraine Augostini and Jeffrey )
6/26/2017 Senate Judiciary Hearing (19:00 6/26/2017 )
5/1/2017 S Received in the Senate, Referred to Senate Judiciary Committee
3/16/2017 A Passed by the Assembly (74-0-0)
6/27/2016 A Assembly Floor Amendment Passed (Mukherji)
6/6/2016 A Reported out of Assembly Comm. with Amendments, 2nd Reading
6/6/2016 Assembly Judiciary Hearing (10:00 6/6/2016 Committee Room 12, 4th Floor)
3/7/2016 A Introduced, Referred to Assembly Judiciary Committee
Date Motion Yea Nay Other
Detail 7/31/2017 Assembly Floor: Concur in Senate Amendments 68 0 11
Detail 6/29/2017 Senate Floor: Third Reading - Final Passage 35 0 5
Detail 6/29/2017 Senate Floor: Substitute For S2527 (Voice Vote) 0 0 0
Detail 6/26/2017 Senate Judiciary Committee: Reported with Amendments 12 0 1
Detail 3/16/2017 Assembly Floor: Third Reading - Final Passage 74 0 6
Detail 6/6/2016 Assembly Judiciary Committee: Reported with Amendments 7 0 0