Fiduciary Access to Digital Assets: A Step Forward for Consumers and Fiduciaries

                                                                                                                © 2016 Joan E. Emery
               There are 19 states which have some form of access to digital assets law.  Illinois became one of those states on August 12, 2016 when Governor Rauner approved House Bill 4648.  This new Illinois law is a significant step forward in the process needed answer questions such as, What constitutes a digital asset? and Who owns or controls those digital assets?  The Illinois Revised Uniform Fiduciary Access to Digital Assets Act (2015) (the “Act”) has a somewhat strange name apparently because the Uniform Fiduciary Access to Digital Assets Act was first presented in Senate Bill 1376, which was introduced on February 28, 2015.  Senate Bill 1376 passed the Illinois Senate on April 22, 2015, but did not pass the Illinois House and “died’ in the Rules Committee.  After the failure of Senate Bill 1376, House Bill 4648 was introduced on February 2, 2016.  House Bill 4648 named the potential new act the “Revised Uniform Fiduciary Access to Digital Assets Act (2015),” apparently to distinguish it from the original proposed act and perhaps to link the new proposed act to the prior proposed act. 
                HB 4648 provided specific procedures and requirements for the access to and control by guardians, executors, agents, and other fiduciaries of the digital assets of persons who were either deceased, under a legal disability, or subject to the terms of a trust.  Unlike SB 1376, HB 4648 was more or less “fast tracked.”  HB 4648 passed the House on April 22, 2016.  A Senate amendment was added to the bill and, as amended, the bill passed the Senate on May 24, 2016.  The bill then went back to the House for consideration of the Senate amendment and the House concurred in the Senate amendment on May 29, 2016.  The bill was sent to the Governor on June 27, 2016.  On August 12, 2016, the bill was approved by Governor Rauner and became Public Act 99-0775.
                 The Act is 8 pages of single-spaced text, so there’s plenty to read.  The Act has 21 separate sections and Section 2 of the Act contains 27 definitions.  I will devote several blog posts to this new Act, since there is significant new information to digest.  This blog post will focus primarily on the definitions contained in the Act.  These definitions specify what is and what is not included within the scope of the Act.    
                The Act’s 27 defined terms are the following:  account; agent; carries; catalogue of electronic communications; guardian; content of electronic communications; court; custodian; designated recipient; digital asset; electronic; electronic communication; electronic communication service; fiduciary; information; online tool; person; personal representative; power of attorney; principal; person with a disability; record; remote-computing device; terms of service agreement; trustee, user; and will.
                In my opinion, 10 of the most important definitions are catalogue of electronic communications, custodian, digital asset, electronic communication, fiduciary, information, person, record, remote-computing service, and user.  A summary of the definitions of these 10 terms is as follows:
                   1.  Catalogue of Electronic Communications –     information that identifies each person with whom the user has an electronic communication, including the time and date of the communication and the electronic address of the person;
                  2.  Custodian –     a person who carries, maintains, processes, receives, or stores a digital asset of a user;
                    3.  Digital Asset – an electronic record in which an individual has a right or interest;
                4.  Electronic Communication – as defined at 18 U. S. C. §2510(12), as amended.  18 U. S. C. §2510 is part of the Electronic Communications Privacy Act of 1986.  Section 2510 contains definitions.  Section 2510(12) defines “electronic communication” as a transfer of signs, signals, writing, images, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce; 
                  5.  Fiduciary - an original, additional, or successor personal representative, guardian, agent, or trustee; 
               6.  Information –    data, text, images, videos, sounds, codes, computer programs, software, databases, “or the like;”
                7. Person –      an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency or instrumentality, or other legal entity;
                 8.  Record – information inscribed on a tangible medium or stored in an electronic or other medium that is retrievable in perceivable form;
                  9.  Remote-Computing Service –         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.  Section 2510(14) defines “electronic communications system” as any wire, radio, electromagnetic, photooptical, or photoelectronic facilities for the transmission of wire or electronic communications and any computer facilities or related electronic equipment for the electronic storage of such communications; and
                      10.  User – a person who has an account with a custodian.             
                Although these definitions are sometimes convoluted, the obvious intent of the Act is to create specific mechanisms by which a trustee, agent under a power of attorney, guardian, executor, or other personal representative can access and administer the digital assets of a person who can no longer administer those assets for himself or herself.  Next time I will discuss some of the specific procedures and requirements for the access to and control of digital assets by guardians, power of attorney agents, executors, and other fiduciaries.