Review of the Texas Revised Uniform Fiduciary Access to Digital Assets Act PART TWO
The Uniform Act divides digital assets into two types: communications and “other digital assets”. Access to communications is more narrow than access to “other digital assets”. Fortunately, most users are going to want the “other digital assets” more often than communications. Typically the statute requires that the “user” to have given consent to the fiduciary to get access to communications. There are at least two sections of the statute for each type of fiduciary.1) Sections 2001.101 and 2001.102 pertain to access in an estate of a “deceased user”. Personal representatives need consent of deceased user or a court order for access to communications of “deceased users” but on the other hand access to other digital assets is given unless “deceased user” prohibited access. 2) Sections 2001.131 and 2001.132 pertain to disclosure to an agent. A custodian is to grant access to other digital assets (a) 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 catalog of electronic communications sent or received by the principal and digital assets of the principal, other than the content of an electronic communication, if the agent gives the custodian: [the information required pursuant to the statute].3) Sections 2001.151 and 2001.152 pertain to the access to be given to a trustee. When the trustee is also the original user (as in a Revocable Trust) the custodian is required to grant access to the trustee. Section 2001.151.The statute gives greater access to trustees who are successors to the original user than to the various other types of fiduciaries. (a) 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: [the information required pursuant to the statute]. Sec. 2001.153. DISCLOSURE OF OTHER DIGITAL ASSETS HELD IN TRUST WHEN TRUSTEE IS NOT ORIGINAL USER. (a) Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose (MY EMPHASIS)to a trustee that is not an original user of an account a catalog 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 in which the trust has a right or interest, other than the content of an electronic communication, if the trustee gives the custodian: [the information required pursuant to the statute].4) Subchapter F sets out the requirements for Guardians. Almost all actions of a guardian require permission of the Court and this statute continues that limitation. The statute requires the guardian to show good cause. That is not defined here and gives the Court great discretion. FIDUCIARY DUTIES The statute imposes a duty of confidentiality on a fiduciary in regard to digital assets. A fiduciary’s authority is subject to applicable terms of service and other applicable law. These are important limitations and reflects the power of the corporate lobby. Further, the fiduciary authority is limited by the scope of the fiduciary’s authority and “may not be used to impersonate the user.” This probably means a fiduciary is not permitted to use the user’s ID and password without going through the carrier first. The statute gives a fiduciary the right to access digital assets that “are not held by a custodian or subject to a terms-of-service agreement. To me this means data on a computer or other device that does not require use of the internet or outside access. Following this phrase the statute makes this point clear: (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 all laws of this state governing unauthorized computer access. (e) A fiduciary with authority over the tangible personal property of a decedent, ward, 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 the purpose of applicable computer fraud and unauthorized computer access laws, including all laws of this state governing unauthorized computer access.Section 2001.201.MISCELLANEOUS ISSUESThe statute takes up a previously difficult area and gives a fiduciary the ability to terminate accounts in most situations.The statute provides standard language for use in the statutory form for access to digital assets. It also reflects changes in other language and format of the statutory form. There is at least one statute pending approval by the governor regarding Statutory Powers of Attorney and will be reviewed later.All of these changes become effective September 1, 2017. I expect that many attorneys will begin using the new language before then.The statute gives custodians 60 days to review requests for access to digital assets or terminate an account. The statute then states a fiduciary is permitted to file a motion with a court for access. There are many situations where a fiduciary may file a motion prior to contacting a custodian, such a when a guardian or personal representative is before a Court anyway and files this motion with other matters requiring Court review. There is going to be a period of adaptation while fiduciaries and custodians become familiar with the requirements of the Uniform Act. Much will depend on how aggressive custodians are about rejecting access to digital assets. The 60 day requirement may well be a court case looming as custodians try to require 60 days for them to respond to a request for information by a personal representative or guardian. It is likely that Courts will construe the statute as giving the custodian 60 days to respond, but cutting off the custodian’s ability to force retrial before a court about access to communications. Due process under the constitution is always protected and could give the custodian the right to be at any hearing on access. This is not a matter that custodians are likely to want to spend money fighting about on a routine basis.
I expect custodians of financial assets will be the least likely to fight about access to information. On the other extreme, it would not surprise me to see custodians such as Yahoo, Facebook and LinkedIn be much more restrictive about granting access to communications held by the respective custodians. All of the content of Facebook is a communication. The Act enables personal representatives to terminate an account and a Court might find that it requires removal of the information. That remains to be seen. I hope you find this useful. In the interest of brevity I have omitted discussion about many compliance requirements.