Chapter 2137: Uniform Fiduciary Access to Digital Assets Act

2137.01 Definitions.

As used in this chapter:

(A) "Account" means an arrangement under a terms-of- service agreement in which a custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user.

(B) "Agent" means a person granted authority to act for a principal under a power of attorney, whether denominated as agent, attorney in fact, or otherwise.

(C) "Carries" means engages in the transmission of an electronic communication.

(D) "Catalogue of electronic communications" means information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person.

(E) "Content of an electronic communication" means information concerning the substance or meaning of the communication that meets all of the following conditions:

(1) It has been sent or received by a user.

(2) It 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.

(3) It is not readily accessible to the public.

(F) "Court" means the probate court for all matters in which the court has exclusive jurisdiction under section 2101.24 of the Revised Code. "Court" also includes the probate court or the general division of the court of common pleas for matters in which such courts have concurrent jurisdiction under section 2101.24 of the Revised Code.

(G) "Custodian" means a person that carries, maintains, processes, receives, or stores a digital asset of a user.

(H) "Designated recipient" means a person chosen by a user using an online tool to administer digital assets of the user.

(I) "Digital asset" means an electronic record in which an individual has a right or interest. "Digital asset" does not include an underlying asset or liability unless the asset or liability is itself an electronic record.

(J) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

(K) "Electronic communication" has the same meaning as in 18 U.S.C. 2510(12), as amended.

(L) "Electronic-communication service" means a custodian that provides to a user the ability to send or receive an electronic communication.

(M) "Fiduciary" means an original, additional, or successor agent, guardian, personal representative, or trustee.

(N)

(1) "Guardian" means any person, association, or corporation appointed by the probate court to have the care and management of the person, the estate, or the person and the estate of an incompetent or minor. When applicable, "guardian" includes, but is not limited to, a limited guardian, an interim guardian, a standby guardian, and an emergency guardian appointed pursuant to division (B) of section 2111.02 of the Revised Code. "Guardian" also includes both of the following:

(a) An agency under contract with the department of developmental disabilities for the provision of protective service under sections 5123.55 to 5123.59 of the Revised Code when appointed by the probate court to have the care and management of the person of an incompetent;

(b) A conservator appointed by the probate court in an order of conservatorship issued pursuant to section 2111.021 of the Revised Code.

(2) "Guardian" does not include a guardian under sections 5905.01 to 5905.19 of the Revised Code.

(O) "Information" means data, text, images, videos, sounds, codes, computer programs, software, databases, or the like.

(P) "Online tool" means an electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person.

(Q) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental agency or instrumentality, public corporation, or any other legal or commercial entity.

(R) "Personal representative" means an executor, administrator, special administrator, or other person acting under the authority of the probate court to perform substantially the same function under the law of this state. "Personal representative" also includes a commissioner in a release of assets from administration under section 2113.03 of the Revised Code and an applicant for summary release from administration under section 2113.031 of the Revised Code.

(S) "Power of attorney" means a writing or other record that grants authority to an agent to act in the place of the principal.

(T) "Principal" means an individual who grants authority to an agent in a power of attorney.

(U) "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.

(V) "Remote-computing service" means a custodian that provides to a user computer-processing services or the storage of digital assets by means of an electronic communications system, as defined in 18 U.S.C. 2510(14), as amended.

(W) "Terms-of-service agreement" means an agreement that controls the relationship between a user and a custodian.

(X) "Trustee" means a fiduciary with legal title to property pursuant to an agreement or declaration that creates a beneficial interest in another. "Trustee" includes an original, additional, and successor trustee and a cotrustee.

(Y) "User" means a person that has an account with a custodian.

(Z) "Ward" means any person for whom a guardian is acting or for whom the probate court is acting pursuant to section 2 111.50 of the Revised Code. "Ward" includes a person for whom a conservator has been appointed by the probate court in an order of conservatorship issued pursuant to section 2111.021 of the Revised Code.

(AA) "Will" includes codicils to wills admitted to probate, lost, spoliated, or destroyed wills, and instruments admitted to probate under section 2107.081 of the Revised Code. "Will" does not include inter vivos trusts or other instruments that have not been admitted to probate.

Cite as R.C. § 2137.01

Added by 131st General Assembly File No. TBD, HB 432, §1, eff. 4/6/2017.

2137.02 Applicability.

(A) This chapter applies to all of the following:

(1) An agent acting under a power of attorney executed before, on, or after the effective date of this section;

(2) A personal representative acting for a decedent who died before, on, or after the effective date of this section;

(3) A guardianship proceeding commenced before, on, or after the effective date of this section;

(4) A trustee acting under a trust created before, on, or after the effective date of this section;

(5) A custodian, if the user resides in this state or resided in this state at the time of the user's death.

(B) This chapter does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer's business.

Cite as R.C. § 2137.02

Added by 131st General Assembly File No. TBD, HB 432, §1, eff. 4/6/2017.

2137.03 User direction for disclosure of digital assets.

(A) A user may use an online tool to direct the custodian to disclose or not to disclose to a designated recipient some or all of the user's digital assets, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or other record.

(B) If a user has not used an online tool to give direction under division (A) of this section, or if the custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of attorney, or other record, disclosure to afiduciary of some or all of the user's digital assets, including the content of electronic communications sent or received by the user.

(C) A user's direction under division (A) or (B) of this section overrides a contrary provision in a terms-of-service agreement that does not require the user to act affirmatively and distinctly from the user's assent to the terms of service.

Cite as R.C. § 2137.03

Added by 131st General Assembly File No. TBD, HB 432, §1, eff. 4/6/2017.

2137.04 Terms-of-service agreement.

(A) This chapter does not change or impair a right of a custodian or a user under a terms-of-service agreement to access and use digital assets of the user.

(B) This chapter does not give afiduciary or designated recipient any new or expanded rights other than those held by the user for whom, or for whose estate, the fiduciary or designated recipient acts or represents.

(C) A fiduciary's access to digital assets may be modified or eliminated by a user, by federal law, or by a terms-of- service agreement if the user has not provided direction under section 2137.03 of the Revised Code.

Cite as R.C. § 2137.04

Added by 131st General Assembly File No. TBD, HB 432, §1, eff. 4/6/2017.

2137.05 Procedure of disclosing digital assets.

(A) When disclosing digital assets of a user under this chapter, the custodian may, at its sole discretion, do any of the following:

(1) Grant a fiduciary or designated recipient full access to the user's account;

(2) Grant a fiduciary or designated recipient partial access to the user's account sufficient to perform the tasks with which the fiduciary or designated recipient is charged;

(3) Provide a fiduciary or designated recipient a copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.

(B) A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this chapter.

(C) A custodian is not required to disclose under this chapter a digital asset deleted by a user.

(D) If a user directs or a fiduciary requests a custodian to disclose under this chapter some, but not all, of the users digital assets, the custodian is not required to disclose the assets if segregation of the assets would impose an undue burden on the custodian. If the custodian believes the direction or request imposes an undue burden, the custodian or fiduciary may seek an order from the court to disclose any of the following:

(1) A subset limited by date of the user's digital assets;

(2) All of the user's digital assets to the fiduciary or designated recipient;

(3) None of the user's digital assets;

(4) All of the user's digital assets to the court for review in camera.

Cite as R.C. § 2137.05

Added by 131st General Assembly File No. TBD, HB 432, §1, eff. 4/6/2017.

2137.06 Disclosure of content of electronic communications of deceased user.

If a deceased user consented to or a court directs disclosure of the contents of electronic communications of the user, the custodian shall disclose to the personal representative of the estate of the user the content of an electronic communication sent or received by the user if the personal representative gives the custodian all of the following:

(A) A written request for disclosure in physical or electronic form;

(B) A copy of the death certificate of the user;

(C) A copy of the letter of appointment of the personal representative, the entry appointing a commissioner under division (E) of section 2113.03 of the Revised Code, or the entry granting summary release from administration under division (E) of section 2113.031 of the Revised Code;

(D) Unless the user provided direction using an online tool, a copy of the user's will, trust, power of attorney, or other record evidencing the user's consent to disclosure of the content of electronic communications;

(E) If requested by the custodian, any of the following:

(1) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account;

(2) Evidence linking the account to the user;

(3) A finding by the court that one of the following applies:

(a) The user had a specific account with the custodian, identifiable by the information specified in division (E)(1) of this section.

(b) Disclosure of the content of electronic communications of the user would not violate 18 U.S.C. 2701 et seq., as amended, 47 U.S.C. 222, as amended, or other applicable law.

(c) Unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications.

(d) Disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.

Cite as R.C. § 2137.06

Added by 131st General Assembly File No. TBD, HB 432, §1, eff. 4/6/2017.

2137.07 Disclosure of other digital assets of deceased user.

Unless the user prohibited disclosure of digital assets or the court directs otherwise, a custodian shall disclose to the personal representative of the estate of a deceased user a catalogue of electronic communications sent or received by the user and digital assets, other than the content of electronic communications, of the user, if the personal representative gives the custodian all of the following:

(A) A written request for disclosure in physical or electronic form;

(B) A copy of the death certificate of the user;

(C) A copy of the letter of appointment of the personal representative, the entry appointing a commissioner under division (E) of section 2113.03 of the Revised Code, or the entry granting summary release from administration under division (E) of section 2113.031 of the Revised Code;

(D) If requested by the custodian, any of the following:

(1) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account;

(2) Evidence linking the account to the user;

(3) An affidavit stating that disclosure of the user's digital assets is reasonably necessary for administration of the estate;

(4) A finding by the court that either of the following applies:

(a) The user had a specific account with the custodian, identifiable by the information specified in division (D)(1) of this section.

(b) Disclosure of the user's digital assets is reasonably necessary for administration of the estate.

Cite as R.C. § 2137.07

Added by 131st General Assembly File No. TBD, HB 432, §1, eff. 4/6/2017.

2137.08 Disclosure of content of electronic communications of principal.

To the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by the principal and unless directed otherwise by the principal or the court, a custodian shall disclose to the agent the content if the agent gives the custodian all of the following:

(A) A written request for disclosure in physical or electronic form;

(B) A copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal;

(C) A certification by the agent, under penalty of perjury, that the power of attorney is in effect;

(D) If requested by the custodian, either of the following:

(1) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account;

(2) Evidence linking the account to the principal.

Cite as R.C. § 2137.08

Added by 131st General Assembly File No. TBD, HB 432, §1, eff. 4/6/2017.

2137.09 Disclosure of other digital Assets of principal.

Unless otherwise ordered by the court, directed by the principal, or provided by a power of attorney, a custodian shall disclose to an agent with specific authority over digital assets or general authority to act on behalf of a principal a catalogue of electronic communications sent or received by the principal and digital assets, other than the content of electronic communications, of the principal, if the agent gives the custodian all of the following:

(A) A written request for disclosure in physical or electronic form;

(B) A copy of the power of attorney that gives the agent specific authority over digital assets or general authority to act on behalf of the principal;

(C) A certification by the agent, under penalty of perjury, that the power of attorney is in effect;

(D) If requested by the custodian, either of the following:

(1) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account;

(2) Evidence linking the account to the principal.

Cite as R.C. § 2137.09

Added by 131st General Assembly File No. TBD, HB 432, §1, eff. 4/6/2017.

2137.10 Disclosure of Digital assets held in trust when Trustee is original user.

Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose to a trustee that is an original user of an account any digital asset of the account held in trust, including a catalogue of electronic communications of the trustee and the content of electronic communications.

Cite as R.C. § 2137.10

Added by 131st General Assembly File No. TBD, HB 432, §1, eff. 4/6/2017.

2137.11 Disclosure of contents of electronic Communications held in trust when trustee not original user.

Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account the content of an electronic communication sent or received by an original or successor user and carried, maintained, processed, received, or stored by the custodian in the account of the trust, if the trustee gives the custodian all of the following:

(A) A written request for disclosure in physical or electronic form;

(B) Either a copy of the trust instrument that includes consent to disclosure of the content of electronic communications to the trustee and a certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust or a certification of the trust under section 5810.13 of the Revised Code that includes a statement that the trust authorizes disclosure of the content of electronic communications to the trustee;

(C) If requested by the custodian, either of the following:

(1) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust's account;

(2) Evidence linking the account to the trust.

Cite as R.C. § 2137.11

Added by 131st General Assembly File No. TBD, HB 432, §1, eff. 4/6/2017.

2137.12 Disclosure of other digital assets held in trust When trustee not original user.

Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account a catalogue of electronic communications sent or received by an original or successor user and stored, carried, or maintained by the custodian in an account of the trust and any digital assets, other than the content of electronic communications, in which the trust has a right or interest, if the trustee gives the custodian all of the following:

(A) A written request for disclosure in physical or electronic form;

(B) Either a copy of the trust instrument and a certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust or a certification of the trust under section 5810.13 of the Revised Code;

(C) If requested by the custodian, either of the following:

(1) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust's account;

(2) Evidence linking the account to the trust.

Cite as R.C. § 2137.12

Added by 131st General Assembly File No. TBD, HB 432, §1, eff. 4/6/2017.

2137.13 Disclosure of digital assets to guardian of ward.

(A) After an opportunity for a hearing, the court may grant a guardian access to the digital assets of a ward.

(B) Unless otherwise ordered by the court or directed by the user, a custodian shall disclose to a guardian the catalogue of electronic communications sent or received by a ward and any digital assets, other than the content of electronic communications, in which the ward has a right or interest, if the guardian gives the custodian all of the following:

(1) A written request for disclosure in physical or electronic form;

(2) A copy of the court order that gives the guardian authority over the digital assets of the ward;

(3) If requested by the custodian, either of the following:

(a) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the account of the ward;

(b) Evidence linking the account to the ward.

(C) A guardian of the ward may request a custodian of the digital assets of the ward to suspend or terminate an account of the ward for good cause. A request made under this section shall be accompanied by a copy of the court order giving the guardian authority over the ward.

Cite as R.C. § 2137.13

Added by 131st General Assembly File No. TBD, HB 432, §1, eff. 4/6/2017.

2137.14 Fiduciary duty and authority.

(A) The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including all of the following:

(1) The duty of care;

(2) The duty of loyalty;

(3) The duty of confidentiality.

(B) All of the following apply to a fiduciary's or designated recipient's authority with respect to a digital asset of a user:

(1) Except as otherwise provided in section 2137.03 of the Revised Code, it is subject to the applicable terms of service.

(2) It is subject to other applicable laws, including copyright law.

(3) In the case of a fiduciary, it is limited by the scope of the fiduciary's duties.

(4) It may not be used to impersonate the user.

(C) A fiduciary with authority over the property of a decedent, ward, principal, or settlor has the right to access any digital asset in which the decedent, ward, principal, or settlor had a right or interest and that is not held by a custodian or subject to a terms-of-service agreement.

(D) A fiduciary acting within the scope of the fiduciary's duties is an authorized user of the property of the decedent, ward, principal, or settlor for the purpose of applicable computer fraud and unauthorized computer access laws, including section 2913.04 of the Revised Code.

(E) Both of the following apply to a fiduciary with authority over the tangible, personal property of a decedent, ward, principal, or settlor:

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

(2) The fiduciary is an authorized user for the purpose of computer fraud and unauthorized computer access laws, including section 2913.04 of the Revised Code.

(F) A custodian may disclose information in an account to a fiduciary of the user when the information is required to terminate an account used to access digital assets licensed to the user.

(G) A fiduciary of a user may request a custodian to terminate the user's account. A request for termination shall be in writing, in either physical or electronic form, and accompanied by all of the following:

(1) If the user is deceased, a copy of the death certificate of the user;

(2) A copy of the instrument giving the fiduciary authority over the account, as follows:

(a) For a personal representative, a copy of the letter of appointment of the personal representative, the entry appointing a commissioner under division (E) of section 2113.03 of the Revised Code, or the entry granting summary release from administration under division (E) of section 2113.031 of the Revised Code;

(b) For an agent, a copy of the power of attorney;

(c) For a trustee, either a copy of the trust instrument and a certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust or a certification of the trust under section 5810.13 of the Revised Code; or

(d) For a guardian, a copy of the court order giving the guardian authority over the ward.

(3) If requested by the custodian, any of the following:

(a) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account;

(b) Evidence linking the account to the user;

(c) A finding by the court that the user had a specific account with the custodian, identifiable by the information specified in division (G)(3)(a) of this section.

Cite as R.C. § 2137.14

Added by 131st General Assembly File No. TBD, HB 432, §1, eff. 4/6/2017.

2137.15 Custodian compliance and immunity.

(A) Not later than sixty days after receipt of the information required under sections 2137.06 to 2137.13 of the Revised Code, a custodian shall comply with a request under this chapter from a fiduciary or designated recipient to disclose digital assets or terminate an account. If the custodian fails to comply, the fiduciary or designated recipient may apply to the court for an order directing compliance.

(B) An order under division (A) of this section directing compliance shall contain a finding that compliance is not in violation of 18 U.S.C. 2702, as amended.

(C) A custodian may notify the user that a request for disclosure or to terminate an account was made under this chapter.

(D) A custodian may deny a request under this chapter 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.

(E) Nothing in this chapter limits a custodian's ability to obtain, or to require a guardian, agent, or designated recipient requesting disclosure or termination under this chapter to obtain, a court order that does all of the following:

(1) Specifies that an account belongs to the ward or principal;

(2) Specifies that there is sufficient consent from the ward or principal to support the requested disclosure; and

(3) Contains a finding required by law other than this chapter.

(F) A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good faith in compliance with this chapter.

Cite as R.C. § 2137.15

Added by 131st General Assembly File No. TBD, HB 432, §1, eff. 4/6/2017.

2137.16 Uniformity of application and construction.

In applying and construing this chapter, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Cite as R.C. § 2137.16

Added by 131st General Assembly File No. TBD, HB 432, §1, eff. 4/6/2017.

2137.17 Relation to Electronic Signatures in Global and National commerce Act.

This chapter modifies, limits, or supersedes the "Electronic Signatures in Global and National Commerce Act," 15 U.S.C. 7001 et seq., but does not modify, limit, or supersede 15 U.S.C. 7001(c) or authorize electronic delivery of any of the notices described in 15 U.S.C. 7003(b).

Cite as R.C. § 2137.17

Added by 131st General Assembly File No. TBD, HB 432, §1, eff. 4/6/2017.

2137.18 Severability.

If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.

Cite as R.C. § 2137.18

Added by 131st General Assembly File No. TBD, HB 432, §1, eff. 4/6/2017.