S T A T E   O F   N E W   Y O R K
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                                  6729

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                             April 17, 2013
                               ___________

Introduced by M. of A. TITONE -- read once and referred to the Committee
  on Judiciary

AN  ACT  to  amend  the  estates,  powers and trusts law, in relation to
  establishing the "access to digital assets act"

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. This act shall be known and may be cited as the "access to
digital assets act".
  S 2. Article 10 of the estates, powers and trusts law  is  amended  by
adding a new part 11 to read as follows:
                                 PART 11
                        ACCESS TO DIGITAL ASSETS
SECTION 10-11.1 DEFINITIONS.
        10-11.2 CONTROL  OF  DIGITAL  PROPERTY  OF  DECEDENT BY PERSONAL
                  REPRESENTATIVE.
        10-11.3 CONTROL OF  DIGITAL  PROPERTY  OF  PROTECTED  PERSON  BY
                  CONSERVATOR.
        10-11.4 CONTROL  OF  DIGITAL  PROPERTY  BY  AGENT UNDER POWER OF
                  ATTORNEY.
        10-11.5 CONTROL OF DIGITAL PROPERTY BY TRUSTEE.
        10-11.6 RECOVERY OF DIGITAL PROPERTY FROM CUSTODIAN.
        10-11.7 OBJECTION TO RECOVERY OF DIGITAL PROPERTY BY FIDUCIARY.
        10-11.8 CUSTODIAN IMMUNITY.
S 10-11.1 DEFINITIONS.
  AS USED IN THIS PART, THE FOLLOWING TERMS  SHALL  HAVE  THE  FOLLOWING
MEANINGS:
  (A) "ACCOUNT HOLDER" MEANS A DECEDENT, PROTECTED PERSON, PRINCIPAL, OR
SETTLOR WHO HAS TERMS-OF-SERVICE AGREEMENT WITH A CUSTODIAN.
  (B)  "AGENT" MEANS AN ATTORNEY-IN-FACT GRANTED AUTHORITY UNDER A DURA-
BLE OR NONDURABLE POWER OF ATTORNEY.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10200-01-3

              

A. 6729                             2

  (C) "CONSERVATOR" MEANS A PERSON THAT  IS  APPOINTED  BY  A  COURT  TO
MANAGE  THE ESTATE OF AN INDIVIDUAL. THE TERM INCLUDES A LIMITED CONSER-
VATOR.
  (D)  "CUSTODIAN"  MEANS  A  PERSON  THAT ELECTRONICALLY STORES DIGITAL
PROPERTY OF AN ACCOUNT HOLDER OR  OTHERWISE  HAS  CONTROL  OVER  DIGITAL
PROPERTY OF THE ACCOUNT HOLDER.
  (E)  "DIGITAL ACCOUNT" MEANS AN ELECTRONIC SYSTEM FOR CREATING, GENER-
ATING, SENDING, RECEIVING, STORING, DISPLAYING, OR  PROCESSING  INFORMA-
TION WHICH PROVIDES ACCESS TO A DIGITAL ASSET OR A DIGITAL SERVICE.
  (F) "DIGITAL ASSET" MEANS INFORMATION CREATED, GENERATED, SENT, COMMU-
NICATED, RECEIVED, OR STORED BY ELECTRONIC MEANS ON A DIGITAL SERVICE OR
DIGITAL  DEVICE; THE TERM INCLUDES A USERNAME, WORD, CHARACTER, CODE, OR
CONTRACT RIGHT UNDER THE TERMS-OF-SERVICE AGREEMENT.
  (G) "DIGITAL DEVICE" MEANS AN  ELECTRONIC  DEVICE  THAT  CAN  RECEIVE,
STORE, PROCESS OR SEND DIGITAL INFORMATION.
  (H)  "DIGITAL  PROPERTY"  MEANS  THE  OWNERSHIP  AND MANAGEMENT OF AND
RIGHTS RELATED TO DIGITAL ACCOUNT AND DIGITAL ASSET.
  (I) "DIGITAL SERVICE" MEANS THE DELIVERY OF DIGITAL INFORMATION  (SUCH
AS DATA OR CONTENT) AND TRANSACTIONAL SERVICES (SUCH AS ONLINE FORMS AND
BENEFITS APPLICATIONS) ACROSS A VARIETY OF PLATFORMS, DEVICES AND DELIV-
ERY  MECHANISMS  (SUCH  AS  WEBSITES,  MOBILE  APPLICATIONS,  AND SOCIAL
MEDIA).
  (J) "ELECTRONIC"  MEANS  RELATING  TO  TECHNOLOGY  HAVING  ELECTRICAL,
DIGITAL,  MAGNETIC, WIRELESS, OPTICAL, ELECTROMAGNETIC, OR SIMILAR CAPA-
BILITIES.
  (K) "GOVERNING INSTRUMENT" MEANS A WILL, TRUST, INSTRUMENT CREATING OR
EXERCISING POWER OF ATTORNEY, OR OTHER DISPOSITIVE, APPOINTIVE, OR NOMI-
NATIVE INSTRUMENT OF ANY SIMILAR TYPE.
  (L) "INFORMATION" MEANS DATA, TEXT, IMAGES,  SOUNDS,  CODES,  COMPUTER
PROGRAMS, SOFTWARE, DATABASES, OR THE LIKE.
  (M)  "INTERESTED  PERSON"  MEANS  HEIRS,  DEVISEES, CHILDREN, SPOUSES,
CREDITORS, BENEFICIARIES AND ANY OTHERS HAVING A PROPERTY  RIGHT  IN  OR
CLAIM  AGAINST  A  TRUST  ESTATE  OR  THE  ESTATE OF A DECEDENT, WARD OR
PROTECTED PERSON WHICH MAY  BE  AFFECTED  BY  THE  PROCEEDING.  IT  ALSO
INCLUDES  PERSONS  HAVING PRIORITY FOR APPOINTMENT AS PERSONAL REPRESEN-
TATIVE, AND OTHER FIDUCIARIES  REPRESENTING  INTERESTED  PERSONS.    THE
MEANING  AS  IT RELATES TO PARTICULAR PERSONS MAY VARY FROM TIME TO TIME
AND MUST BE DETERMINED ACCORDING TO  THE  PARTICULAR  PURPOSES  OF,  AND
MATTER  INVOLVED IN, ANY PROCEEDING. IN A CONSERVATORSHIP PROCEEDING, IT
ALSO INCLUDES ANY GOVERNMENTAL AGENCY PAYING OR PLANNING TO PAY BENEFITS
TO THE WARD OR PROTECTED PERSON AND ANY PUBLIC OR CHARITABLE AGENCY THAT
REGULARLY CONCERNS ITSELF WITH METHODS  FOR  PREVENTING  UNNECESSARY  OR
OVERLY  INTRUSIVE  COURT INTERVENTION IN THE AFFAIRS OF PERSONS FOR WHOM
PROTECTIVE ORDERS MAY BE SOUGHT AND THAT SEEKS  TO  PARTICIPATE  IN  THE
PROCEEDINGS.
  (N)  "PRINCIPAL"  MEANS AN INDIVIDUAL WHO GRANTS AUTHORITY TO AN AGENT
IN A POWER OF ATTORNEY.
  (O) "PROPERTY" MEANS ANYTHING THAT MAY BE THE  SUBJECT  OF  OWNERSHIP,
AND IS REAL OR PERSONAL PROPERTY.  THE TERM INCLUDES DIGITAL PROPERTY.
  (P) "PROTECTED PERSON" MEANS AN INDIVIDUAL FOR WHOM A PROTECTIVE ORDER
HAS BEEN MADE.
  (Q)  "PROTECTIVE  ORDER"  MEANS  AN  ORDER APPOINTING A CONSERVATOR OR
ANOTHER ORDER RELATED TO MANAGEMENT OF A PROTECTED PERSON'S PROPERTY.
  (R) "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.

A. 6729                             3

  (S)  "TERMS-OF-SERVICE  AGREEMENT"  MEANS A CONTRACT THAT CONTROLS THE
RELATIONSHIP BETWEEN  AN  ACCOUNT  HOLDER  AND  A  CUSTODIAN.  THE  TERM
INCLUDES A TERMS-OF-USE AGREEMENT.
  (T) "TRUSTEE" MEANS A FIDUCIARY WITH LEGAL TITLE TO ASSETS PURSUANT TO
AN AGREEMENT THAT CREATES A BENEFICIAL INTEREST IN OTHERS.
S 10-11.2 CONTROL  OF DIGITAL PROPERTY OF DECEDENT BY PERSONAL REPRESEN-
            TATIVE
  EXCEPT AS A TESTATOR OTHERWISE PROVIDED  BY  WILL  OR  UNTIL  A  COURT
OTHERWISE  ORDERS,  A PERSONAL REPRESENTATIVE, ACTING REASONABLY FOR THE
BENEFIT OF  THE  INTERESTED  PERSONS,  MAY  EXERCISE  CONTROL  OVER  THE
DECEDENT'S DIGITAL PROPERTY TO THE EXTENT PERMITTED UNDER APPLICABLE LAW
AND A TERMS-OF-SERVICE AGREEMENT.
S 10-11.3 CONTROL OF DIGITAL PROPERTY OF PROTECTED PERSON BY CONSERVATOR
  (A) AT THE INITIAL HEARING ON AN APPLICATION TO APPOINT A CONSERVATOR,
OR LATER APPLICATION BY A CONSERVATOR, THE COURT MAY EXPRESSLY AUTHORIZE
THE  CONSERVATOR  TO  DO  ONE  OR  MORE OF THE FOLLOWING, SUBJECT TO THE
PROVISIONS OF THE APPLICABLE TERMS-OF-SERVICE AGREEMENT:
  (1) EXERCISE CONTROL OVER DIGITAL PROPERTY OF THE PROTECTED PERSON;
  (2) EXERCISE A RIGHT IN DIGITAL PROPERTY OF THE PROTECTED PERSON; AND
  (3) CHANGE A GOVERNING INSTRUMENT AFFECTING THE  DIGITAL  PROPERTY  OF
THE PROTECTED PERSON.
  (B)  IN AUTHORIZING A CONSERVATOR'S POWERS UNDER PARAGRAPH (A) OF THIS
SECTION, THE COURT SHALL CONSIDER THE  PROTECTED  PERSON'S  INTENT  WITH
RESPECT TO THOSE POWERS TO THE EXTENT THAT INTENT CAN BE ASCERTAINED.
S 10-11.4 CONTROL OF DIGITAL PROPERTY BY AGENT UNDER POWER OF ATTORNEY
  IF  A  POWER  OF ATTORNEY GRANTS AUTHORITY TO AN AGENT AND EXERCISE OF
AUTHORITY IS NOT OTHERWISE PROHIBITED BY A TERMS-OF-SERVICE AGREEMENT OR
A GOVERNING INSTRUMENT TO WHICH THE DIGITAL PROPERTY OF THE PRINCIPAL IS
SUBJECT, THE AGENT MAY:
  (A) EXERCISE CONTROL OVER THE DIGITAL PROPERTY;
  (B) EXERCISE ANY RIGHT IN THE DIGITAL PROPERTY; AND
  (C) CHANGE A GOVERNING INSTRUMENT AFFECTING THE DIGITAL PROPERTY.
S 10-11.5 CONTROL OF DIGITAL PROPERTY BY TRUSTEE
  A TRUSTEE MAY EXERCISE CONTROL OVER AND RIGHTS IN ANY DIGITAL PROPERTY
ACCORDING TO THE TERMS OF THE TRUST.
S 10-11.6 RECOVERY OF DIGITAL PROPERTY FROM CUSTODIAN
  (A) ON RECEIPT OF A WRITTEN REQUEST BY A FIDUCIARY WITH AUTHORITY OVER
THE DIGITAL PROPERTY OF ANOTHER INDIVIDUAL AND AN AUTHORIZED USER  UNDER
ALL APPLICABLE STATE AND FEDERAL STATUTES, FOR ACCESS TO DIGITAL PROPER-
TY,  OWNERSHIP  OF  DIGITAL  PROPERTY,  OR  A COPY OF A DIGITAL ASSET, A
CUSTODIAN WITH CONTROL OF THE DIGITAL PROPERTY OR  ASSET  SHALL  PROVIDE
THE FIDUCIARY THE REQUESTED ACCESS, OWNERSHIP, OR COPY, IF THE FIDUCIARY
COMPLIES WITH PARAGRAPH (B) OF THIS SECTION.
  (B)  A  REQUEST  MADE PURSUANT TO THIS SECTION SHALL BE IN WRITING AND
IF:
  (1) BY A PERSONAL REPRESENTATIVE, THE REQUEST MUST BE ACCOMPANIED BY A
CERTIFIED COPY OF THE LETTER OF APPOINTMENT OF  THE  PERSONAL  REPRESEN-
TATIVE WHICH GRANTS AUTHORITY OVER THE DIGITAL PROPERTY;
  (2)  BY  A CONSERVATOR, THE REQUEST MUST BE ACCOMPANIED BY A CERTIFIED
COPY OF THE COURT ORDER THAT GIVES THE CONSERVATOR  AUTHORITY  OVER  THE
DIGITAL PROPERTY;
  (3)  BY  AN AGENT, THE REQUEST MUST BE ACCOMPANIED BY A CERTIFIED COPY
OF THE POWER OF ATTORNEY THAT AUTHORIZES THE AGENT TO EXERCISE AUTHORITY
OVER THE DIGITAL PROPERTY; OR

A. 6729                             4

  (4) BY A TRUSTEE, THE REQUEST MUST BE ACCOMPANIED BY A CERTIFIED  COPY
OF THE TRUST INSTRUMENT THAT AUTHORIZES THE TRUSTEE TO EXERCISE AUTHORI-
TY OVER THE DIGITAL PROPERTY.
  (C)  A  CUSTODIAN SHALL COMPLY NOT LATER THAN SIXTY DAYS AFTER RECEIPT
OF THE REQUEST MADE UNDER  THIS  SECTION.  IF  THE  CUSTODIAN  FAILS  TO
COMPLY,  THE  FIDUCIARY  MAY  APPLY  TO THE COURT FOR AN ORDER DIRECTING
COMPLIANCE.
  (D) A CERTIFIED COPY OF A TRUST OR POWER  OF  ATTORNEY  MEANS  A  COPY
ACCOMPANIED  BY  AN AFFIDAVIT BY WHICH THE AFFIANT ATTESTS THAT THE COPY
IS A TRUE, EXACT, COMPLETE AND UNALTERED PHOTOCOPY OF THE ORIGINAL,  AND
THAT  TO  THE  BEST OF THE AFFIANT'S KNOWLEDGE, SAID DOCUMENT REMAINS IN
FULL FORCE AND EFFECT.
S 10-11.7 OBJECTION TO RECOVERY OF DIGITAL PROPERTY BY FIDUCIARY
  (A) AN INTERESTED PARTY MAY FILE WITH THE COURT WITH JURISDICTION OVER
THE ACCOUNT  HOLDER  OR  THE  FIDUCIARY,  A  WRITTEN  OBJECTION  TO  THE
FIDUCIARY'S  REQUEST  FOR  CONTROL  OVER  OR THE FIDUCIARY'S EXERCISE OF
CONTINUED CONTROL OVER DIGITAL PROPERTY.
  (B) ON THE FILING OF AN OBJECTION UNDER PARAGRAPH (A) OF THIS SECTION,
THE COURT SHALL ORDER A HEARING ON THE OBJECTION AT LEAST  FIFTEEN  DAYS
AND NOT LATER THAN SIXTY DAYS AFTER THE FILING.
  (C)  AT A HEARING UNDER PARAGRAPH (B) OF THIS SECTION, THE COURT SHALL
CONSIDER THE OBJECTION AND MAY  ORDER  THE  FIDUCIARY  NOT  TO  EXERCISE
CONTROL OR ANY OTHER RIGHT OVER THE DIGITAL PROPERTY.
S 10-11.8 CUSTODIAN IMMUNITY
  (A)  A  CUSTODIAN  IS  IMMUNE  FROM  LIABILITY  FOR ANY ACTION MADE IN
COMPLIANCE WITH SECTION 10-11.6 OF THIS PART.
  (B) A CUSTODIAN ACTING IN GOOD FAITH IS IMMUNE  FROM  CIVIL  LIABILITY
FOR  THE  CUSTODIAN'S  ACCIDENTAL  DESTRUCTION  OF  ANY DIGITAL PROPERTY
SUBJECT TO THIS PART.
  S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law.  Effective immediately, the addition, amend-
ment and/or repeal of any rule or regulation necessary for the implemen-
tation of this act on its effective date are authorized to be  made  and
completed on or before such effective date.