Legislature(2017 - 2018)GRUENBERG 120

03/24/2017 01:00 PM House JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
-- Public Testimony --
Heard & Held
-- Public Testimony --
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSHB 69(JUD) Out of Committee
            HB 108-FIDUCIARY ACCESS TO DIGITAL ASSETS                                                                       
1:13:32 PM                                                                                                                    
CHAIR CLAMAN announced  that the next order of  business would be                                                               
HOUSE BILL NO. 108, "An Act  adopting and relating to the Revised                                                               
Uniform Fiduciary Access to Digital Assets Act."                                                                                
[Chair Claman passed the gavel to Vice Chair Fansler.]                                                                          
1:14:12 PM                                                                                                                    
CHAIR CLAMAN moved to adopt  CSHB 108, Version 30-LS0210\U as the                                                               
working  document.   There  being  no  objection, Version  U  was                                                               
before the committee.                                                                                                           
1:14:50 PM                                                                                                                    
CHAIR CLAMAN, in presenting CSHB  108, Version U, advised that in                                                               
2015, 74,000  Alaskans, 9.9 percent of  Alaska's population, were                                                               
over  the age  of 65.   Due  to the  increasingly computer  savvy                                                               
senior  population, fiduciary  access to  digital assets  is more                                                               
important  than  ever.    He   explained  that  this  legislation                                                               
provides fiduciaries  the legal authority to  manage assets, such                                                               
as   computer   files,   digital  photographs,   and   electronic                                                               
1:15:46 PM                                                                                                                    
DEBORAH  BEHR,  Commissioner,   Uniform  Law  Commission,  Alaska                                                               
Uniform Law Delegation, presented her testimony as follows:                                                                     
     Good afternoon.   I'm  Deborah Behr  and I'm  a Uniform                                                                    
     Law Delegation member from the State of Alaska.                                                                            
     Alaska has been a member  of the Uniform Law Delegation                                                                    
     since about 1914.  And,  Uniform Law Commission is a --                                                                    
     what  I consider  to be  a state  right's organization.                                                                    
     Each state sends their  representative to meet annually                                                                    
     to  deal with  problems  that cross  state lines,  like                                                                    
     commerce, like digital assets.   And, we come up with a                                                                    
     solution after  great negotiations  that works  for all                                                                    
     of the states.  And this  bill is the result of that in                                                                    
     terms of digital assets.   Twenty -- twenty-four states                                                                    
     have already  enacted it, it  is the law in  24 states.                                                                    
     And it is  presently pending on 18 states,  of which of                                                                    
     those 18  states - 2  are sitting on  governors' desks.                                                                    
     So this  is a  -- an  actively moving  bill and  it has                                                                    
     been  generally accepted  in other  states.   And,  the                                                                    
     Uniform  Law Commissioners  have  reviewed  the --  the                                                                    
     Alaska  delegation  have  reviewed  the CS  and  we  do                                                                    
     support the CS and the changes to it.                                                                                      
     What I thought  I'd do is give an overview  of the bill                                                                    
     and then ask if you folks  have any questions.  The Act                                                                    
     itself was  the result of  senior groups coming  to the                                                                    
     Uniform  Law  Commission  and   saying  that  they  had                                                                    
     difficulties  when a  family --  when  a family  member                                                                    
     died and  the fiduciary --  in typical cases  a husband                                                                    
     and  wife, the  wife is  the fiduciary,  she's the  one                                                                    
     that  the  husband trusted  to  deal  with her  --  his                                                                    
     assets when  he passed on.   And, there's a  problem in                                                                    
     digital assets  right now.   The law has not  kept pace                                                                    
     with digital assets,  such that in a  typical case, the                                                                    
     husband --  and the example  of digital assets  is like                                                                    
     the family photo album.   In my house, my husband takes                                                                    
     all the family photos, puts  them on some cloud or some                                                                    
     -- some server  that I don't quite  understand, and has                                                                    
     a --  they're password  protected or encrypted  so that                                                                    
     the average  person can't  get to his  photos.   He has                                                                    
     also  signed a  contract  with the  custodian of  those                                                                    
     photos and  in that  contract they  agree to  keep them                                                                    
     confidential,  people can't  generally  have access  to                                                                    
     it.   And, that's generally  where the problem  is with                                                                    
     digital assets  and why they're different  than your --                                                                    
     your  deed,   your  house,  your  car,   whatever  will                                                                    
     transfer  at your  death.   Because  they are  password                                                                    
     protected  and there's  also  been  a contract  promise                                                                    
     between  -- in  my case,  it would  be my  husband that                                                                    
     passed away, there would be  a contract promise between                                                                    
     the custodian  Google, Facebook,  whatever, to  keep my                                                                    
     husband's documents on file with them confidential.                                                                        
1:18:27 PM                                                                                                                    
     So, we  -- we  reported -- we  received cases  from all                                                                    
     over  the United  States about  people  wanting to  get                                                                    
     even the most basic thing  like the family photo album.                                                                    
     And when  they would go  to Google or Facebook  for it,                                                                    
     and they'd  say, "Geez,  we'd really  like to  help you                                                                    
     but  your husband,  the decedent  - the  user, when  he                                                                    
     signed the  Terms of Service  Agreement with  Google or                                                                    
     Facebook,  he asked  for us  to  keep it  confidential.                                                                    
     That's  our standard  form and  we're stuck  with that.                                                                    
     Please get a court order."   Court orders are expensive                                                                    
     to get  and there's a  delay in getting them,  and it's                                                                    
     also at  a time for  families when it's  very stressful                                                                    
     for them, there's  been a death in  the family, there's                                                                    
     been  a disability  in the  family, and  it just  takes                                                                    
     time.   And, in some  cases that time has  actual money                                                                    
     costs of family.  One  example that someone gave me was                                                                    
     where someone had -- became  disabled and he was a sole                                                                    
     proprietor  of a  business.   He has  all his  business                                                                    
     records  in  the cloud,  paperless  in  his office  and                                                                    
     somebody  had to  come and  run his  business while  he                                                                    
     recuperated.   Well,  the problem  is,  the husband  at                                                                    
     that  point  did not  have  capacity  to say  what  his                                                                    
     passwords were  or even  where they  were --  where the                                                                    
     digit assets  were located.   So, it  ended up  being a                                                                    
     big  mess for  the  family.   The  family defaulted  on                                                                    
     loans,  they  had  to  pay  extra  interest  that  they                                                                    
     wouldn't have  to deal with.   And so, that's  -- those                                                                    
     are the kinds of problems  that came to the Uniform Law                                                                    
1:19:58 PM                                                                                                                    
     Why  we  thought a  uniform  law  was important  across                                                                    
     state  lines, because  first of  all, digital  commerce                                                                    
     goes across states lines.   We don't have any choice in                                                                    
     that.   And  also, residents  of Alaska  travel a  lot.                                                                    
     And so  you want to  make sure that  their expectations                                                                    
     are followed and then the  bill basically says that you                                                                    
     look at the  residency of where the user,  in this case                                                                    
     my  deceased husband,  would  be --  what  kind of  law                                                                    
     would apply.   So, in this case it would  be Alaska law                                                                    
     So,  what   is  the  solution  that   the  Uniform  Law                                                                    
     Commissioners came  up with?   And, this  -- this  is a                                                                    
     result of  a two-year public process,  its open public,                                                                    
     anybody can  come to our  meetings.   Google, Facebook,                                                                    
     the industry  was there, senior groups  were there, and                                                                    
     just anybody  who cared to.   And,  after the end  of a                                                                    
     two-year process it  came up with what I  call and "opt                                                                    
     in"  system.   So that  the decedent,  the person  when                                                                    
     they're alive  has to say  to Google or  Facebook, this                                                                    
     is how  I would like  my digital assets handled.   And,                                                                    
     it's called an "online tool,"  that's the buzz word for                                                                    
     it.   So, Google or  Facebook will have an  online tool                                                                    
     so that when  you open the account, it will  come up as                                                                    
     a  separate electronic  document that  you will  decide                                                                    
     whether you want to use it  or not.  You don't have to,                                                                    
     there's no  requirement that  you do.   And, if  you do                                                                    
     use it,  then that sets  the clear path for  the family                                                                    
     photos to go to whoever  the decedent had wanted at the                                                                    
     time  that  he  opened   the  account  with  Google  or                                                                    
     Facebook.   And,  you can  change it  readily, and  the                                                                    
     nice thing  about it,  people have  asked me  about it,                                                                    
     you don't  need a lawyer  to do  the online tool.   You                                                                    
     can  have a  different person  who has  access to  your                                                                    
     family  photos, or  your music,  whatever makes  sense.                                                                    
     Like in your  financial records, you may  not want your                                                                    
     children  to have  access to  them, you  may want  your                                                                    
     brother who's a CPA to do  them if you pass away.  But,                                                                    
     your  music or  the  family photos  can have  children,                                                                    
     something like  that might be  just fine.  So,  it's an                                                                    
     opt  in  system, person  does  nothing,  they don't  --                                                                    
     can't take  the benefits  of the  online tool,  but the                                                                    
     online tool is available for them.                                                                                         
1:22:10 PM                                                                                                                    
     Okay, what happens  if there is no online  tool, or the                                                                    
     person just  decides not to use  it, or in the  case of                                                                    
     probably all of  us in this room, we  have open digital                                                                    
     accounts  years ago  and  this  tool wasn't  available.                                                                    
     Okay, so  the tool isn't  available, you go  onto, what                                                                    
     is  called the  -- you  look at  the person's  will and                                                                    
     this  bill also  covers  trusts,  powers of  attorneys,                                                                    
     guardianship and  conservatorship.   But, I'm  going to                                                                    
     focus on wills because it  is easier to understand.  If                                                                    
     it is very clear in the  will who you want your digital                                                                    
     assets to go to, then that  -- the bill sets a priority                                                                    
     system for  that.  The issue  that came up in,  when we                                                                    
     were dealing with this, is  most wills are the typical,                                                                    
     I  give all  my assets  to my  wife, or  I give  all my                                                                    
     assets  to my  husband.   And, that  generally will  --                                                                    
     causes a  problem because you  don't know  whether it's                                                                    
     digital  assets and  you also  have this  contract that                                                                    
     your  husband signed,  or your  wife signs  saying that                                                                    
     they  would like  to have  this doc  -- digital  assets                                                                    
     treated in  a confidential manner.   So, if  it's clear                                                                    
     enough in  the will  that you can  see it,  the digital                                                                    
     assets were intended and there  is expressed consent in                                                                    
     there "I  want my  fiduciary, my  wife, or  whoever, to                                                                    
     get access to  them."  Then that's  the trigger, that's                                                                    
     the second level of the online system.                                                                                     
     The  third level  of --  supposing you  have no  online                                                                    
     tool, wasn't  available or you  just didn't cho  -- you                                                                    
     were in a  hurry and buzzed through that  screen on it.                                                                    
     Your will is  a general will or a lot  of Alaskans have                                                                    
     no wills.   So,  you have no  will, what  happens next?                                                                    
     It's  the Terms  of  Service Agreement  applied.   And,                                                                    
     that's the  Terms of Service Agreement  that my husband                                                                    
     signed  with Google  or Facebook.   They  are generally                                                                    
     going  to  mean you've  got  a  court  case out  of  it                                                                    
     because of --  in the Terms of  Service Agreement there                                                                    
     generally, you are going to  keep this confidential and                                                                    
     so you  are basically  stuck with a  court case  on it.                                                                    
     So, but if  somebody chooses to do nothing,  the -- and                                                                    
     doesn't do  an online tool, their  will doesn't address                                                                    
     it,  then  you  will  look  at  the  Terms  of  Service                                                                    
1:24:26 PM                                                                                                                    
     This  system has  been supported  by industry,  Google,                                                                    
     Facebook, have  -- and technical groups  have supported                                                                    
     it, senior  groups nationwide, our National  Academy of                                                                    
     Elder  Attorneys have  supported it.   In  Alaska we're                                                                    
     very pleased that  the Alaska AARP has  supported it, a                                                                    
     major trust company  in Alaska have said  "Yes, this is                                                                    
     a problem  in Alaska" and  they support it,  and Alaska                                                                    
     Commission on  Aging.  You  will see  those endorsement                                                                    
     letters in this file.                                                                                                      
     The other interplay with digital  assets is, there is a                                                                    
     federal  law  on  this issue  dealing  with  electronic                                                                    
     communications and  how you store  them, but  they have                                                                    
     to be confidential.  So, the  bill sets up a system for                                                                    
     a  special   treatment  for  email,  because   I  think                                                                    
     everybody in  this room, when  you write an  email, you                                                                    
     don't think  people are going  to be reading  over your                                                                    
     shoulder and  looking at  how you're  doing it  and all                                                                    
     that.  So,  how the bill sets up a  structure for email                                                                    
     is,  if   you  give  consent,  express   consent  -  my                                                                    
     fiduciary, my  wife can  have access  to the  email, no                                                                    
     question,  you can  get it  onto the  bill.   The other                                                                    
     option is  a court order  because courts right  now can                                                                    
     monitor that when it's appropriate.   If the person has                                                                    
     not  done  an express  consent,  and  there's no  court                                                                    
     order, then the  best that the fiduciary gets  is -- in                                                                    
     this  bill  -  is  what   is  called  the  "Catalog  of                                                                    
     Electronic Communications."  And,  what that sets up is                                                                    
     just the "to,  from, and the date and  the addresses on                                                                    
     it."    Not the  subject  line,  not  the body  of  it.                                                                    
     Because the person did not  express, during his life --                                                                    
     his  or  her  lifetime,  that  they  would  want  their                                                                    
     electronic  communications  viewed  by a  third  party,                                                                    
     even  a spouse.   And,  that's absolutely  appropriate.                                                                    
     The fiduciaries  in this area  have said they can  do a                                                                    
     lot with the  name and the email address.   They can go                                                                    
     and --  if you see 10  emails from Wells Fargo  and the                                                                    
     banks, they pretty much have  a good idea you have some                                                                    
     financial relationship  with Wells  Fargo and  they can                                                                    
     go forward and  deal with them.  And, a  big issue that                                                                    
     I've  done  some  research   recently  on  is,  closing                                                                    
     accounts.   There's a whole  lot of fraud in  this area                                                                    
     when  somebody  leaves  a digital  account  open  after                                                                    
     someone dies.  People will  go in and open credit cards                                                                    
     on it, they will send out  flyers saying "I'm ill and I                                                                    
     need contributions  for my medical  care."   You really                                                                    
     need to  close these accounts  and this will  allow you                                                                    
     to identify the accounts and go forward with it.                                                                           
1:27:16 PM                                                                                                                    
REPRESENTATIVE LEDOUX  noted that  Ms. Behr referred  to pictures                                                               
and Facebook,  and asked  whether this would  let someone  into a                                                               
regular Facebook account.                                                                                                       
MS. BEHR responded  that, currently, Facebook has  what is called                                                               
a "Legacy Form,"  so if a person opens a  Facebook account today,                                                               
her understanding  is that the  person can  say "If I  pass away,                                                               
this  is --  the person  can have  access to  my private  part of                                                               
Facebook."    She  commented  that   she  is  not  an  expert  in                                                               
electronics  and can  get way  ahead of  herself easily,  but her                                                               
understanding is that  there is a public part of  it where anyone                                                               
can look at it, and then  there's a private part where the person                                                               
has to friend people and people  have to come into it, that's the                                                               
part  that this  bill  deals  with.   It  also  deals with  email                                                               
communications.    The  definition  of digital  asset  is  pretty                                                               
broad, and it  can include things that have a  value, like domain                                                               
names, bit  coins - electronic  currency.   So, it's a  big issue                                                               
nationwide and a big issue that affects seniors.                                                                                
1:29:01 PM                                                                                                                    
REPRESENTATIVE  LEDOUX referred  to  people  with prior  Facebook                                                               
accounts, and  asked whether  Facebook is  amenable to  sending a                                                               
notice with a link to the legacy form.                                                                                          
MS. BEHR  stated that she  does not represent Google  or Facebook                                                               
and  doesn't  want  to  speak  for these  businesses.    She  did                                                               
acknowledged  that [the  legacy form]  is there  and people  have                                                               
been  using it.   In  response  to the  subset of  Representative                                                               
LeDoux's  question, she  said that  people have  asked her  about                                                               
training, and the  senior groups advised that  they will actively                                                               
offer education on this topic, and  she was advised by the Alaska                                                               
Bar Association's Committee  on Probate that it  is interested in                                                               
making sure everyone  is aware of it.  Also,  when searching [the                                                               
internet], she  found that  a tremendous  amount of  material was                                                               
out  there.   She  commented  that  she  doesn't believe  it  has                                                               
trickled up  to Alaska much,  but it  is an issue  because Alaska                                                               
does  have a  major trust  company that  reported it  was a  real                                                               
issue for them.                                                                                                                 
1:30:27 PM                                                                                                                    
MS. BEHR continued her testimony as follows:                                                                                    
     What  happens  if  I'm  a   fiduciary  and  my  --  the                                                                    
     decedent, my  husband whatever, has said  "Yes, you may                                                                    
     have access."  All  the duties and responsibilities the                                                                    
     fiduciary  has such  as  like, protecting  information,                                                                    
     checking on  copyrights, things like  that.   They have                                                                    
     the  same  responsibilities  that you  have  for  other                                                                    
     assets that are  in the estate.  And, the  bill sets up                                                                    
     what  kinds of  things that  they have  to give  to the                                                                    
     Google  or  Facebook  to get  the  information.    It's                                                                    
     usually  things  like  a certified  death  certificate,                                                                    
     things like that.                                                                                                          
     If  -- the  bill does  provide immunity  for Google  or                                                                    
     Facebook if  they do it  right, according to  the bill,                                                                    
     and  if  they  respond appropriately  within  60  days.                                                                    
     And,  that's a  big deal  because right  now, this  can                                                                    
     languish on  for long periods  of time while  Google is                                                                    
     checking with  its attorney or  you're getting  a court                                                                    
     order.   There's no  real parameters  of trying  to get                                                                    
     things out.  This puts a  limit of 60 days to make sure                                                                    
     that  things are  done appropriately  according to  the                                                                    
     Okay,  the bill  does not  apply to  digital assets  of                                                                    
     employers.  So like there's  a lot of private employers                                                                    
     that  pretty  much allow  people  to  use the  business                                                                    
     computer for their  own use.  It does not  -- this bill                                                                    
     does not deal with that, that's separate and apart.                                                                        
     Sec. 1  of the  CS, and  how it  differs from  the base                                                                    
     bill,  amends the  Alaska statutory  form  of power  of                                                                    
     attorney bill to  allow people, if they  use the canned                                                                    
     statutory  form of  power of  attorney,  that they  can                                                                    
     specifically  give  consent  for access  to  electronic                                                                    
     documents.    And  that  was  sort  of  brought  to  my                                                                    
     attention when  I testified last  time, that  there was                                                                    
     an amendment that  needed to be done  there, and that's                                                                    
1:32:41 PM                                                                                                                    
CHAIR CLAMAN  referred to Ms.  Behr's example of  photographs and                                                               
another  example of  emails, and  noted that  it sounds  like the                                                               
bill  specifically  distinguishes  those  two.   For  example,  a                                                               
person  might be  comfortable giving  someone complete  access to                                                               
their Facebook  account, but wanted to  treat emails differently.                                                               
In that  case, the emails may  be set up so  that the information                                                               
people would  have access to  would be the communication,  who it                                                               
was  going to,  and who  it  was coming  from, only.   This  bill                                                               
allows that distinction to be made, he quiered.                                                                                 
MS. BEHR answered that one of  the concerns of privacy groups was                                                               
to  make sure  that the  content of  the email  was confidential.                                                               
Also, within  federal law,  the content of  an email  has special                                                               
privacy rights,  which is why  it requires an express  consent to                                                               
get at the content of an email, or a court order, she said.                                                                     
1:33:52 PM                                                                                                                    
REPRESENTATIVE EASTMAN  said he understands that  the Uniform Law                                                               
Commission decided a  bill was appropriate in  this instance, and                                                               
asked why this  would not be handled simply  by encouraging those                                                               
who write  wills and  templets for  wills to  make sure  this was                                                               
addressed in that will somewhere.                                                                                               
MS. BEHR  explained that there  is still the problem  with Google                                                               
or Facebook.  For example, in  the event her husband was deceased                                                               
and  he  signed  a  contract  with a  third  party  to  keep  his                                                               
information  confidential   with  a  third  party,   she  has  no                                                               
relationship with that third party.   That, she explained, is the                                                               
overlay  that  makes this  different  from  your house,  car,  or                                                               
whatever.   Also, her husband's  photographs or  business records                                                               
are password  protected or  encrypted, and just  putting it  in a                                                               
will does not deal with this  major issue of the spouse not being                                                               
a party  to the contract.   She asked, why Google  would give her                                                               
access to  an account  when Google doesn't  know whether  the two                                                               
parties have  any relationship with  each other even  though they                                                               
are still married.                                                                                                              
1:35:31 PM                                                                                                                    
REPRESENTATIVE EASTMAN  asked whether the Uniform  Law Commission                                                               
distinguishes  between emails  and photographs  on the  one hand,                                                               
and digital asset passwords on the  other hand.  In the event his                                                               
spouse were  to die  or vice  versa, the  passwords would  be the                                                               
most sought after  for bank accounts, or any  number of different                                                               
reasons.   Those passwords  would be part  of the  digital assets                                                               
but  do not  necessarily fall  in under  Facebook or  Google, but                                                               
rather it is electronic information  that was saved somewhere, he                                                               
1:36:16 PM                                                                                                                    
MS.  BEHR  pointed out  that  passwords  are an  interesting  and                                                               
difficult  issue because  passwords are  generally linked  with a                                                               
particular account, such as bank  account, Facebook, or whatever,                                                               
and a person must know the  password to have access.  The problem                                                               
with passwords  is that  they change,  people have  accounts that                                                               
they  don't  necessarily,  even   for  themselves,  remember  the                                                               
password.   A system  must be provided  in that  situation where,                                                               
for example  a sole proprietor  had a stroke and  the [fiduciary]                                                               
didn't know  where the accounts  or passwords were located.   She                                                               
related  that "You  have  to  be able  to  go  directly into  the                                                               
accounts  and  be  able  to  have  a  relationship  with  Google,                                                               
Facebook,  whoever has  the electronic  assets."   She  explained                                                               
that the  bill allows several  ways to obtain the  documents such                                                               
as,  in the  case of  a guardianship  or conservatorship  wherein                                                               
they  are limited  to  financial records.   The  bill  sets up  a                                                               
system to  deal with  that because passwords  change, and  also a                                                               
person doesn't  want a booklet  sitting around with  passwords in                                                               
it, she said.                                                                                                                   
1:38:08 PM                                                                                                                    
REPRESENTATIVE  REINBOLD asked  whether  this has  any impact  on                                                               
"our  legislative Facebook  accounts?"   She  referred to  former                                                               
Representative  Gruenberg, and  how  it would  have impacted  the                                                               
situation with Representative Gruenberg.                                                                                        
MS. BEHR  responded that  she was unaware  of the  situation with                                                               
former Representative Gruenberg.                                                                                                
1:38:46 PM                                                                                                                    
REPRESENTATIVE  REINBOLD  asked  Chair   Claman  to  discuss  the                                                               
situation in  that "they didn't  have the ability to  access some                                                               
of his important legislative work and items in his office."                                                                     
1:39:06 PM                                                                                                                    
CHAIR  CLAMAN   related  that  with  respect   to  Representative                                                               
Gruenberg and  Facebook, Representative Gruenberg, for  whom this                                                               
room is  named, liked  books, papers,  and the  old style  way of                                                               
doing things  and if he  had a Facebook  account, no one  saw it.                                                               
He opined that there were  issues involving his actual papers and                                                               
who had custody of the  papers, and the email communications were                                                               
probably  more  undertaken  by   his  staff  than  Representative                                                               
Gruenberg.  He  said was unsure how this would  fit into that but                                                               
in  terms  of  the  motivation  for the  bill,  he  could  assure                                                               
Representative  Reinbold that  Representative Gruenberg's  recent                                                               
death had  absolutely nothing to do  with the bill.   The Uniform                                                               
Law  Commission  asked  him,  as  the  House  Judiciary  Standing                                                               
Committee chair,  to introduce  this bill  due to  the increasing                                                               
need, on  a national level,  to address  these issues.   He added                                                               
that   as  someone   fairly  familiar   with   the  Uniform   Law                                                               
Commission's process,  this legislation  seemed like a  good bill                                                               
to bring forward due to the issues it raised.                                                                                   
CHAIR CLAMAN opined that in the  world of an estate setting, or a                                                               
severely disable person  who can no longer  manage their affairs,                                                               
he   believed  the   courts  would   view  access   to  financial                                                               
information from a  bank, with that password,  would be important                                                               
information  to let  the estate  know of  their assets,  how much                                                               
money there was, and what other  assets they have that need to be                                                               
managed.   Whereas,  email  communications  and privacy  concerns                                                               
enters  into a  different realm  in terms  of where  does privacy                                                               
come in.   He related that  his executors would have  an interest                                                               
in knowing  where the money  was, which is different  from emails                                                               
in the realm of privacy.                                                                                                        
CHAIR CLAMAN  commented that most people  do not have a  will and                                                               
the bill  makes it easier  in the instance  of an interesse.   It                                                               
creates ways  for family members to  figure that in, and  it also                                                               
creates a  forum for the contractual  relationship between places                                                               
like Facebook  and email carriers to  be able to deal  with those                                                               
things without a will setting out what to do.                                                                                   
1:43:40 PM                                                                                                                    
REPRESENTATIVE REINBOLD  asked whether  this bill would  have any                                                               
impact on  a person's work account  or a public office  and said,                                                               
for  example,  she  has   a  "Representative  Reinbold"  Facebook                                                               
CHAIR  CLAMAN  opined  that  the   Facebook  account  reflects  a                                                               
relationship between you  and Facebook even though  you have that                                                               
relationship in  your representative capacity, and  your Facebook                                                               
account  is not  formally part  of what  the Legislative  Affairs                                                               
Agency manages.   Therefore, that becomes  a relationship between                                                               
you,  the individual  who  happens to  be  a representative,  and                                                               
Facebook.     Whereas,   your   email   communications  in   your                                                               
Representative  Lora  Reinbold  account, managed  by  Legislative                                                               
Affairs Agency,  gets into the  more complicated  questions about                                                               
public officials, public records, and who controls those.                                                                       
1:45:24 PM                                                                                                                    
REPRESENTATIVE REINBOLD asked  Ms. Behr to answer,  as the former                                                               
regulatory review [supervisor].                                                                                                 
MS. BEHR  advised that she  had nothing to  follow up with  as to                                                               
Chair Claman's answer.                                                                                                          
1:45:58 PM                                                                                                                    
REPRESENTATIVE  LEDOUX noted  that when  the discussion  is about                                                               
digital  bank account  information, she  opined there  must be  a                                                               
procedure  where the  executor  goes to  the  bank after  someone                                                               
dies,  and  the  bank  provides the  information.    The  digital                                                               
account is contained in the app, she said.                                                                                      
MS.  BEHR said  that she  noticed that  younger attorneys  at the                                                               
Department  of Law  are moving  their private  personal financial                                                               
accounts  to be  totally paperless.    In the  situation where  a                                                               
person  has  a totally  paperless  account,  the concern  is  the                                                               
executor  locating  the  account  and  how  they  will  find  the                                                               
account.   In  this  bill,  a person  can  receive  a Catalog  of                                                               
Communications  which depicts  the following:  To, From,  Date of                                                               
emails.   For  example, her  husband recently  received something                                                               
from the  bank advising  that his tax  return form  was available                                                               
and it  was around  tax time, this  information offered  a pretty                                                               
good  idea  of  some   financial  relationship.  Trust  companies                                                               
believe this bill is a good idea  because a person has to be able                                                               
to  gather  information  where  the  assets  are  located.    The                                                               
executor still has  to go to the bank and  fill out its paperwork                                                               
according to  the banking  and stock broking  laws.   She pointed                                                               
out  that  this  bill  helps  to  locate  assets  the  family  or                                                               
fiduciary didn't know were available.                                                                                           
1:48:27 PM                                                                                                                    
REPRESENTATIVE LEDOUX commented  that she likes the  idea of this                                                               
law and she  wasn't trying to give  Ms. Behr a hard  time, but if                                                               
she  was the  executor of  her brother's  estate and  didn't know                                                               
where he banked because everything  was totally paperless, if she                                                               
had any  relationship with  her brother  she would  probably know                                                               
where he worked and where they were depositing his checks.                                                                      
MS. BEHR  agreed that that  was definitely is a  possibility, but                                                               
there are people  without a strong relationship  with an employer                                                               
or  they are  self-employed.   This  bill covers  a multitude  of                                                               
situations, and  it addresses the  electronic age and  brings the                                                               
law  into conformity  with the  paperless  world, she  explained.                                                               
Therefore, it will  become more and more difficult  to locate the                                                               
assets  that a  fiduciary and  executor  have a  duty to  gather,                                                               
monitor, and pay bills.                                                                                                         
1:50:06 PM                                                                                                                    
REPRESENTATIVE  EASTMAN  asked  how the  Uniform  Law  Commission                                                               
looked upon instances where a  third party might have an interest                                                               
in whether or not certain records  are disclosed.  For example, a                                                               
legislator specifies  in their will  that they want all  of their                                                               
digital assets available  to their wife.   Although, because they                                                               
work for  the legislature there are  confidentiality expectations                                                               
with regard to  communications that might, in  all likelihood, be                                                               
part  of those  records.   Or,  someone works  for  the Army,  or                                                               
whoever,  and their  employer thinks  it has  an interest  in the                                                               
spouse not having access to those kinds of records, he offered.                                                                 
1:50:44 PM                                                                                                                    
MS. BEHR pointed  out that this bill does not  change other laws.                                                               
She  referred to  copyright,  and  noted that  in  the event  she                                                               
receives an  asset that  is copyrighted, she  can't blast  it all                                                               
over the newspaper  because she has to follow copyright  law.  In                                                               
the  event  she  was  trying  to get  a  death  benefit  for  her                                                               
husband's estate, and  acquired confidential medical information,                                                               
she  has  to treat  those  records  confidentially, just  as  her                                                               
husband  would.   She reiterated  that this  bill doesn't  change                                                               
other  laws, and  it  doesn't change  how  she receives  military                                                               
benefits, or goes  into someone's bank account  because she still                                                               
has to  conform to  the law the  legislature adopted  in banking,                                                               
stock, military benefits, and such.                                                                                             
1:51:36 PM                                                                                                                    
VICE CHAIR  FANSLER referred  to industry buy  in, and  noted Ms.                                                               
Behr mentioned that Google and  Facebook were supportive of this.                                                               
He  asked  whether  this  was  a  universal  buy  in,  such  that                                                               
Microsoft  and Yahoo  are buying  in, and  whether there  was 100                                                               
percent buy in,  or whether some companies are not  on board with                                                               
MS. BEHR explained  that, first of all, this bill  would not have                                                               
passed in  23 or 24 states,  and pending on two  governor's desks                                                               
if people had  serious problems with it.  She  reiterated that it                                                               
has been  an open public  process, and she specifically  asked at                                                               
the  national  office if  they  had  received complaints  or  any                                                               
serious opposition, and she was told "No."                                                                                      
1:52:53 PM                                                                                                                    
VICE CHAIR FANSLER inquired as  to whether any thought was given,                                                               
since there was work with  the industry, whether the industry was                                                               
willing to change the user  license agreements or terms for their                                                               
sites.  He commented that that  might be a way to assure everyone                                                               
that they have to do this,  rather than possibly having to change                                                               
their will.                                                                                                                     
MS. BEHR  answered that  Google and Facebook  would say,  if they                                                               
were at the  witness table, that they are  following federal law.                                                               
Federal  law  has  certain  privacy  restrictions  on  electronic                                                               
communications;  therefore,  even  if   the  user  agreement  was                                                               
changed,  there  would still  be  the  problem with  federal  law                                                               
requiring  that  it  be  confidential, and  that  they  have  the                                                               
consent of  the person before  "you can  get into the  content of                                                               
their  electronic communications."    She offered  that the  nice                                                               
thing  about  the online  tool  is  that  it allows  industry  to                                                               
develop the  kind of  online tool they  want for  their business.                                                               
She said she would imagine  that Facebook has something different                                                               
than Wells  Fargo because the  needs are different.   She related                                                               
that she  heard Facebook  was setting up  legacy pages  wherein a                                                               
person  can  explain  that  their  loved  one  passed  away,  the                                                               
location of the service, and where to send donations.                                                                           
1:54:43 PM                                                                                                                    
VICE CHAIR  FANSLER referred to the  industry end and the  opt in                                                               
systems, and asked whether they  are general blanket opt in, such                                                               
that  Google has  Google G-mail,  Google-drive, the  calendar and                                                               
all the different suites.  He  further asked whether it is opt in                                                               
by one or a general "you opt in and everything goes over?"                                                                      
MS. BEHR  replied that she  doesn't have the expertise  to answer                                                               
that question.   Although, the bill  sets up for them  to have an                                                               
online tool and  she was unsure whether Google has  one for each.                                                               
It's  possible  that   they  do  because  maybe   the  needs  are                                                               
different, but she was unsure, she said.                                                                                        
1:55:42 PM                                                                                                                    
VICE CHAIR FANSLER noted that  Facebook is a blending of pictures                                                               
and  media that  might be  valuable,  but a  person has  Facebook                                                               
messenger which  is similar to  an email  chat system.   He asked                                                               
whether  this bill  allows a  person to  delineate between  those                                                               
two.   For  instance, say  he wanted  his future  spouse to  have                                                               
access to  all of his pictures  but not the messenger  part of it                                                               
MS.  BEHR  opined  that  the   protections  for  the  content  of                                                               
electronic  communications  apply  even   if  it  was  a  blended                                                               
account, a person still has to  show consent because they have to                                                               
get around federal  law that says "consent."  She  noted that she                                                               
reviewed some of  the standard forms of consent  and offered that                                                               
it's not something someone easily  gives, such that it is similar                                                               
to the consent given to doctors  to release medical records.  She                                                               
described  that consent  as a  large couple  of sentences  so the                                                               
person  knows what  they  are  doing, and  what  access they  are                                                               
giving  up.   Although,  she explained,  a  more general  consent                                                               
would be fine for photographs.                                                                                                  
1:57:08 PM                                                                                                                    
VICE  CHAIR  FANSLER  surmised  that Ms.  Behr  was  saying  that                                                               
Facebook would require  the more advanced consent  because it has                                                               
the photographs that need the  general consent, but it definitely                                                               
has the messenger portion to ...                                                                                                
MS. BEHR pointed out that  she doesn't advise Google or Facebook,                                                               
but  she can  tell them  they need  to look  at federal  law, and                                                               
federal  law  requires  a  pretty  good  consent  on  giving  out                                                               
contents of electronic communications.                                                                                          
1:57:39 PM                                                                                                                    
VICE CHAIR FANSLER opened public testimony on HB 108.                                                                           
1:57:56 PM                                                                                                                    
KEN HELANDER, Advocacy Director,  American Association of Retired                                                               
Persons (AARP),  said it  had been  interesting listening  to the                                                               
testimony  and   questions  because  it  underscored   that  this                                                               
proposed legislation was the consequence  of this digital age and                                                               
the  increasing role  it plays  in everyday  lives.   Society has                                                               
long accepted the legally defined  role of conservator, executor,                                                               
and  agent, in  carrying  out fiduciary  duties  with respect  to                                                               
tangible  assets  on behalf  of  the  deceased individual  or  an                                                               
incapacitated  person unable  to  make decisions.   He  commented                                                               
that  the  many  accounts  a person  now  opens  digitally  could                                                               
include, commerce,  banking, entertainment, research,  and social                                                               
networking,  which   are  all  complex  and   protected  by  each                                                               
account's rules  of privacy.   He said, "I  know we all  read the                                                               
fine   print  on   those  terms   of  service   agreements,"  but                                                               
nevertheless it can be confusing.   Financial digital accounts go                                                               
beyond banking  and into an online  brokerage as to how  a person                                                               
pays  their   bills,  virtual  property  accounts   like  virtual                                                               
currencies and bit coins, air  miles, and he then listed examples                                                               
of many more  accounts.  He explained that each  of the different                                                               
types of service  have its own terms of  service agreement, which                                                               
is a  contract and companies  are reluctant to  share information                                                               
it promised not to share.   The importance of being able to close                                                               
accounts,  avoid   unnecessary  expenses,   prevent  unauthorized                                                               
account  use,  or  identity theft,  requires  new  approaches  in                                                               
managing  these affairs.   He  pointed  out that  the bill  gives                                                               
Alaskans  the right  to treat  their digital  assets in  the same                                                               
manner they  treat their tangible  assets, it  allows individuals                                                               
to  effect advanced  life  planning, and  give  a trusted  family                                                               
member  the  ability  to  settle the  loved  ones  financial  and                                                               
personal affairs.   He said  AARP Alaska supports the  passage of                                                               
HB 108.                                                                                                                         
2:01:38 PM                                                                                                                    
VICE CHAIR FANSLER, after ascertaining  no one wished to testify,                                                               
closed public testimony on HB 108.                                                                                              
2:01:59 PM                                                                                                                    
REPRESENTATIVE  EASTMAN asked  whether there  are any  deviations                                                               
between   this  bill   and  what   the  Uniform   Law  Commission                                                               
recommended for those other states.                                                                                             
CHAIR CLAMAN  noted that it  is not the Uniform  Law Commission's                                                               
recommendation.    He  pointed  out that  during  the  course  of                                                               
drafting  HB 69,  they realized  that last  year the  legislature                                                               
changed the statutory  Power of Attorney form.   Consequently, he                                                               
said, a subsection  was included into the Power  of Attorney form                                                               
and  he  advised  that  Sec.  1,  page 3,  of  the  bill  is  the                                                               
modification to the statutory Power of Attorney form.                                                                           
2:02:53 PM                                                                                                                    
MS.  BEHR  remarked that  in  the  area  of  uniform law,  it  is                                                               
important that this  bill be comparable to what  other states do,                                                               
and she  ran this  base bill  through the  Chicago office  of the                                                               
Uniform Law  Commission who  said it  was just  fine.   There are                                                               
small  style changes  that  are different  for  Alaska such  that                                                               
Alaska's  definitions are  at  the end  of the  bill  and in  the                                                               
uniform  law they  are  at the  beginning,  but it  substantively                                                               
doesn't change  anything.  With  regard to the amendment  for the                                                               
Alaska  Pacific   Power  of  Attorney   form,  the   Uniform  Law                                                               
Commission would  have no  comment on  that because  it is  not a                                                               
uniform form used in other states, she offered.                                                                                 
[Vice Chair Fansler returned the gavel to Chair Claman.]                                                                        
2:03:54 PM                                                                                                                    
[HB 108 was held over.]                                                                                                         

Document Name Date/Time Subjects
HB069 Additional Document-Office of Administrative Hearings White Paper December 2014 3.22.17.pdf HJUD 3/24/2017 1:00:00 PM
HB 69
HB123 ver I 3.10.17.PDF HJUD 3/24/2017 1:00:00 PM
HJUD 3/27/2017 1:00:00 PM
HB 123
HB123 Sponsor Statement 3.10.17.pdf HJUD 3/24/2017 1:00:00 PM
HJUD 3/27/2017 1:00:00 PM
HB 123
HB123 Explanation of Changes ver I 3.10.17.pdf HJUD 3/24/2017 1:00:00 PM
HJUD 3/27/2017 1:00:00 PM
HB 123
HB123 ver O 2.22.17.PDF HJUD 3/24/2017 1:00:00 PM
HB 123
HB123 Sectional Analysis ver O 3.10.17.pdf HJUD 3/24/2017 1:00:00 PM
HB 123
HB123 Supporting Document-Article ADN-A Doctor's Quest to Remain Human Inside an Insane Medical System 3.10.17.pdf HJUD 3/24/2017 1:00:00 PM
HJUD 3/27/2017 1:00:00 PM
HB 123
HB123 Supporting Document-American's For Progress-Price Transparency 3.10.17.pdf HJUD 3/24/2017 1:00:00 PM
HJUD 3/27/2017 1:00:00 PM
HB 123
HB123 Supporting Document-AAMC Price Transparency in the News 3.10.17.pdf HJUD 3/24/2017 1:00:00 PM
HJUD 3/27/2017 1:00:00 PM
HB 123
HB123 Supporting Document-Truven Health Analytics-Save $36 Billion in US Healthcare Spending Through Price Transparency 2.22.17.pdf HJUD 3/24/2017 1:00:00 PM
HJUD 3/27/2017 1:00:00 PM
HB 123
HB123 Supporting Document-Letters and Emails of Support 3.23.17.pdf HJUD 3/24/2017 1:00:00 PM
HJUD 3/27/2017 1:00:00 PM
HB 123
HB123 Fiscal Note DHSS-BVS 3.10.17.pdf HJUD 3/24/2017 1:00:00 PM
HJUD 3/27/2017 1:00:00 PM
HB 123
HB108 ver U 3.21.17.pdf HJUD 3/24/2017 1:00:00 PM
HB 108
HB108 Sponsor Statement 3.13.2017.pdf HJUD 3/24/2017 1:00:00 PM
HB 108
HB108 Explanation of Changes ver U 3.22.17.pdf HJUD 3/24/2017 1:00:00 PM
HB 108
HB108 Sectional Analysis ver U 3.22.17.pdf HJUD 3/24/2017 1:00:00 PM
HB 108
HB108 ver A 3.13.2017.PDF HJUD 3/24/2017 1:00:00 PM
HB 108
HB108 Sectional Analysis ver A 3.13.2017.pdf HJUD 3/24/2017 1:00:00 PM
HB 108
HB108 Supporting Document-ULC Fact Sheets 3.13.2017.pdf HJUD 3/24/2017 1:00:00 PM
HB 108
HB108 Supporting Document-ULC Summary 3.13.2017.pdf HJUD 3/24/2017 1:00:00 PM
HB 108
HB108 Supporting Document-ULC Why Adopt 3.13.2017.pdf HJUD 3/24/2017 1:00:00 PM
HB 108
HB108 Supporting Document-ULC Rev Uniform Fiduciary Access to Digital Assets Act (2015) 3.13.2017.pdf HJUD 3/24/2017 1:00:00 PM
HB 108
HB108 Fiscal Note LAW-CIV 3.13.17.pdf HJUD 3/24/2017 1:00:00 PM
HB 108