Legislature(2017 - 2018)BELTZ 105 (TSBldg)
04/03/2017 01:30 PM JUDICIARY
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SB 16-FIDUCIARY ACCESS TO DIGITAL ASSETS 2:18:59 PM CHAIR COGHILL announced the consideration of SB 16. 2:19:08 PM SENATOR SHELLY HUGHES, Alaska State Legislature, sponsor of SB 16, stated that this legislation provides guidance for the disposition of an individual's personal digital assets when they pass away. This is missing from current law. SB 16 offers digital users the opportunity to specify whether their digital assets should be preserved, distributed to heirs, or destroyed. She explained the need for an overarching law to provide access to digital assets to loved ones in other states. She provided an example of Yahoo denying a father access to his deceased son's account. It took a lawsuit for the father to gain access to the account to see if there were outstanding financial matters to settle. If SB 16 were to pass, fiduciaries would have easier access to digital assets of the deceased. The bill models the Uniform Law Commission recommendations, so it would apply across state lines. She listed the entities that support the bill including: National Academy of Elder Law Attorneys, Facebook, Google, Center for Democracy and Technology, and AARP. 2:22:30 PM CHAIR COGHILL asked for a review of the uniform code and a high level overview of the sections. 2:23:15 PM BUDDY WHIIT, Staff, Senator Shelly Hughes, Alaska State Legislature, provided a high level overview of SB 16. He described Sec. 13.63.010 as the most important section. It sets out user direction for disclosure of digital assets. He read the following: Sec. 13.63.010 sets out user direction for disclosure of digital assets. This proposed section addresses the relationship of online tools, other records documenting the user's intent, and terms of service agreements. The section establishes a three-tier priority system for determining the user's intent with respect to a digital assets. Subsection (a) gives top priority to the user's wishes as expressed using an online tool. Subsection (b) gives next tier priority to user's direction in will, trust, power of attorney, or other record. Subsection (c) recognizes the terms- of-service agreement if the user left no other direction. MR. WHITT explained that Google provides an example of an online tool. An individual who has a Gmail or other Google account can find the tool in the user's guide. It is called the "inactive account manager." Facebook also uses an online tool called "legacy contact." It too can be found in the user's account preferences. He said everything else in the bill hinges off this section. He noted that the chair in a previous committee asked about forms and was told that the bill does not address forms. Upon further review, it became clear that power of attorney forms needed to be addressed because they are part of state statute. The sponsor therefore suggests including a provision for digital assets under that form as prescribed in statute. CHAIR COGHILL invited Ms. Behr to talk about her position on the Uniform Law Commission and her perspective of SB 16. 2:27:02 PM DEBORAH E BEHR, Member, Alaska Delegation, Uniform Law Commission, Juneau, Alaska, stated that Alaska has been a member of the Uniform Law Commission since 1912. The commission meets annually to discuss problems for which an interstate solution is appropriate and desirable. She said senior groups and probate attorneys brought the issue of access to a decedent's digital assets to the commission's attention. Probate laws have not kept pace with advances in technology such as this. She provided an account of what happens when a spouse is unable to access stored digital photos because they do not have a contract with the service provider (custodian); the deceased spouse has the contract. The typical will does not work, nor does the business partnership. The information is treated as confidential and the service provider generally requires a court order for the spouse or fiduciary to gain access. She reported that 24 states have enacted this model law, it is sitting on the governor's desk in 2 states, and 16 other states have introduced the legislation. A major trust company in Alaska has endorsed the bill and Google, Facebook and other major players have stated support for a standard, nationwide solution. The model law provides an opt-in solution whereby an individual gives express consent for access to each digital account. For example, I want my music to go to my brother, my financial records to go to my wife, and I don't want anybody to look at certain other things, she said. When the individual opens an account, a separate screen will pop up asking what they want to do with their digital assets if they pass on or become incapacitated. If the individual does not sign the online tool and there is nothing in the will, the terms of service agreement will apply and the spouse or family or business partner will not have access to the digital material. She advised that the bill provides immunity to the custodian for good-faith compliance if they act within 60 days. In the case of a guardianship, the bill has a provision for hearings to ascertain the extent of the disability. For example, someone who experiences a disability might be able to handle Facebook but not a financial account. 2:36:02 PM SENATOR WIELECHOWSKI asked if there is an age limit for someone to be able to designate disposition of their digital assets. MS. BEHR said she would do some follow-up research, but she understands that young children are able to open a Facebook account. She opined that doing things appropriately for young children would probably involve the court. CHAIR COGHILL offered his understanding that the age limit is 16 to open an online account. SENATOR WIELECHOWSKI asked how it would work if a minor didn't want their parents to have access to their digital assets. MS. BEHR recounted a case in another state where a child committed suicide and the parents were never able to access the decedent's digital assets. SENATOR WIELECHOWSKI asked how jurisdiction is determined. MS. BEHR said a provision in the bill from the uniform law says that residency is the determining factor. 2:38:52 PM CHAIR COGHILL held SB 16 in committee with public testimony open.