29 Apr Wisconsin Legislative Update
The Wisconsin legislature recently enacted a new chapter under its laws affecting property entitled Wisconsin Digital Property Act (the “Act”); and also amended existing statutes to incorporate a reference to the Act, effective March 21, 2016.
WISCONSIN ASSEMBLY BILL 695
The Wisconsin Digital Property Act sets forth definitions that are related to electronic communications or electronic records.
- “Digital property” is defined as an electronic record in which a person has a right or interest, but does not include underlying property or an underlying liability unless the property or liability is itself an electronic record.
- “Custodian” is a person who carries, maintains, processes, receives, or stores a user’s digital property.
- “Person” means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.
- “User” is a person that has an account with a custodian.
- “Account” is an arrangement under terms of a service agreement in which a custodian carries, maintains, processes, receives, or stores a user’s digital property or provides goods or services to the user.
- “Online tool” means a setting provided by a custodian that allows a user, by an agreement between the custodian and user that is distinct from the user’s assent to the terms of service, to provide directions for disclosure or nondisclosure of digital property to a designated recipient.
- “Terms of service agreement” is an agreement that controls the relationship between a user and a custodian.
A user may use an online tool to:
1. direct the custodian to disclose to a designated recipient; or
2. direct the custodian not to disclose some or all of the user’s digital property, including the contents of electronic communication.
If the tool allows the user to modify or delete such directions at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or any other governing instrument.
If a user has not used an online tool to give directions as described above, or if the custodian does not provide such tool, the user may allow or prohibit disclosure to a fiduciary of some or all of the user’s digital property through a will, trust, power of attorney, or other governing instrument.
A user’s direction through an online tool or in a document (e.g. will, trust, power of attorney, or other governing instrument) overrides a contrary provision in terms of a service agreement that does not require the user to act affirmatively and distinctly from the user’s assent to the terms of service.
Unless a user has prohibited disclosure of digital property or a court directs otherwise, a custodian must disclose to a personal representative of the deceased user’s estate certain specific information if the personal representative gives the custodian all of the following:
- Written request in physical or electronic form;
- Certified copy of the death certificate of user;
- One of the following to establish the personal representative’s authority over the deceased user’s digital property:
o Certified copy of the letters of appointment;
o Certified copy of a summary proceeding order under Wisconsin probate law;
o Original or copy of an affidavit under Wisconsin probate law (§867.03);
o Original or copy of application under Wisconsin probate law (§867.046).
- If requested by the custodian, any of the following:
o A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
o Evidence linking the account to the user;
o Affidavit stating that disclosure of the user’s digital property is reasonably necessary for administration of the estate;
o Court order that includes any of the following findings:
§ The user had a specific account with the custodian, identifiable by number, username, address, or other unique identifier;
§ The disclosure of the user’s digital property is reasonably necessary for administration of the estate.
The Act sets forth the requirements for a custodian’s disclosure related to digital property when:
- The principal has given authority to an agent through a power of attorney;
- The digital property is held in trust where the trustee is the original user;
- The digital property is held in trust where the trustee is not the original user; or
- A court, after opportunity for hearing, has granted a guardian or conservator access to the digital property of a protected person.
When disclosing digital property of a user, the custodian may in its sole discretion provide a fiduciary or designated recipient with any of the following:
- Full access to the user’s account;
- Partial access to the user’s account that is sufficient to perform the task with which the fiduciary or designated recipient is charged; or
- A copy in a record of any digital property that the user could have accessed if the user were alive, had full capacity, and had full access to the account on the date on which the custodian received the request for disclosure.
A custodian may assess a reasonable administrative charge to a fiduciary or designated recipient for the cost of disclosing digital property.
A custodian is not required to disclose digital property deleted by the user. If a user directs, or a fiduciary or designated recipient requests, a custodian to disclose some, but not all, of the user’s digital property, the custodian is not required to disclose if segregation of the digital property would impose an undue burden on the custodian; however, the custodian or fiduciary may seek an order from the court related to disclosure.
The Act sets forth the timing and components of custodian compliance with a request or a court order. A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good faith in compliance with the Act.
The Act also specifies that the legal duties imposed on a fiduciary with the authority to manage tangible property apply to a fiduciary’s management of digital property.
Marital property classification as set forth in Wisconsin law also applies to digital property of a user who is married.
The Act does not apply to:
- A custodian if the user is not residing in the state or was not residing in the state at the time of user’s death;
- Digital property of an employer used by an employee in the ordinary course of the employer’s business.
The definition of “property” under the guardian/conservator laws, criminal laws and probate laws of Wisconsin has been amended to included digital property. Additionally, the Wisconsin Statutory Power of Attorney Form has been amended to include a grant of authority covering digital property.