DIGITAL ASSETS
OKLAHOMA 2024 SESSION LAW SERVICE Fifty-Ninth Legislature, 2024 Second Regular Session
2024 Okla. Sess. Law Serv. Ch. 115 (H.B. 3778) (WEST)
OKLAHOMA 2024 SESSION LAW SERVICE
Fifty-Ninth Legislature, 2024 Second Regular Session
CHAPTER 115
H.B. No. 3778
DIGITAL ASSETS
An Act relating to digital assets; creating the Revised Uniform Fiduciary Access to Digital Assets Act; defining terms; clarifying applicability of act; permitting user to use online tool to direct custodian to disclose or not disclose certain digital assets; providing procedure if online tool not used; establishing that user's direction overrides certain contrary terms-of-service agreement; clarifying that act does not impair certain right; clarifying that act does not expand nor give certain rights; permitting modification or elimination of certain access; permitting custodian grant certain access; permitting custodian to provide certain copy of digital asset; permitting reasonable administrative charge; specifying that custodian need not disclose certain digital asset; permitting custodian to not disclose certain digital assets that impose undue burden; permitting seeking of certain court order; directing that custodian make certain disclosures to personal representative of the estate of the user; directing custodian make certain disclosures of catalog of electronic communications to personal representative; directing custodian make certain disclosures of electronic communications to agent; directing custodian make certain disclosure of catalog of electronic communications to certain agents with certain authority; directing that custodian make certain disclosures to trustee; permitting court to grant access to guardian of certain digital assets; directing custodian to make certain disclosures of electronic communications to guardian; permitting guardian with general authority to suspend or terminate certain accounts for good cause; establishing legal duties of fiduciary charged with management of digital assets; clarifying authority of fiduciary or designated recipient's authority; permitting fiduciary with certain authority certain right of access to certain digital assets; clarifying that fiduciary acting within certain scope is an authorized user; permitting custodian to disclose certain information to fiduciary when necessary to terminate certain account; permitting fiduciary to request termination of user's account; directing that custodian comply with request within time frame; permitting fiduciary or designated recipient to seek court order; directing that order must not violate certain federal law; permitting custodian to notify user of certain requests; permitting custodian to deny certain requests; clarifying that act does not limit certain abilities of custodian; limiting liability; directing for certain consideration in application of act; clarifying that act modifies, limits, or supersedes certain law; providing for severability; providing for codification; and providing an effective date.
SUBJECT: Digital assets
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 3101 of Title 58, unless there is created a duplication in numbering, reads as follows:
<< OK ST T. 58 § 3101 >>
This act shall be known and may be cited as the “Revised Uniform Fiduciary Access to Digital Assets Act”.
SECTION 2. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 3102 of Title 58, unless there is created a duplication in numbering, reads as follows:
<< OK ST T. 58 § 3102 >>
As used in this act:
1. “Account” means an arrangement under a terms-of-service agreement in which a custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user;
2. “Agent” means an attorney-in-fact granted authority under a durable or nondurable power of attorney;
3. “Carries” means engages in the transmission of an electronic communication;
4. “Catalog of electronic communications” means information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person;
5. “Guardian” means a person appointed by a court to manage the estate of a living individual. The term includes a limited guardian;
6. “Content of an electronic communication” means information concerning the substance or meaning of the communication which:
a. has been sent or received by a user,
b. is in electronic storage by a custodian providing an electronic-communication service to the public or is carried or maintained by a custodian providing a remote-computing service to the public, and
c. is not readily accessible to the public;
7. “Court” means the court of proper jurisdiction;
8. “Custodian” means a person who carries, maintains, processes, receives, or stores a digital asset of a user;
9. “Designated recipient” means a person chosen by a user using an online tool to administer digital assets of the user;
10. “Digital asset” means an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record;
11. “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities;
12. “Electronic communication” has the meaning set forth in 18 U.S.C., Section 2510(12);
13. “Electronic-communication service” means a custodian that provides a user the ability to send or receive an electronic communication;
14. “Fiduciary” means an original, additional, or successor personal representative, guardian, agent, or trustee;
15. “Information” means data, text, images, videos, sounds, codes, computer programs, software, databases, or the like;
16. “Online tool” means an electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person;
17. “Person” means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity;
18. “Personal representative” means an executor, administrator, special administrator, or person that performs substantially the same function under the laws of this state other than this act;
19. “Power of attorney” means a record that grants an agent authority to act in the place of a principal;
20. “Principal” means an individual who grants authority to an agent in a power of attorney;
21. “Protected person” means an individual for whom a guardian has been appointed. The term includes an individual for whom an application for the appointment of a guardian is pending;
22. “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;
23. “Remote-computing service” means a custodian that provides to a user computer processing services or the storage of digital assets by means of an electronic communications system, as defined in 18 U.S.C., Section 2510(14);
24. “Terms-of-service agreement” means an agreement that controls the relationship between a user and a custodian;
25. “Trustee” means a fiduciary with legal title to property under an agreement or declaration that creates a beneficial interest in another. The term includes a successor trustee;
26. “User” means a person who has an account with a custodian; and
27. “Will” includes a codicil, testamentary instrument that only appoints an executor, and instrument that revokes or revises a testamentary instrument.
SECTION 3. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 3103 of Title 58, unless there is created a duplication in numbering, reads as follows:
<< OK ST T. 58 § 3103 >>
A. This act applies to:
1. A fiduciary acting under a will or power of attorney executed before, on, or after November 1, 2024;
2. A personal representative acting for a decedent who died before, on, or after November 1, 2024;
3. A guardianship proceeding commenced before, on, or after November 1, 2024; and
4. A trustee acting under a trust created before, on, or after November 1, 2024.
B. This act applies to a custodian if the user resides in this state or resided in this state at the time of the user's death.
C. This act does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer's business.
SECTION 4. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 3104 of Title 58, unless there is created a duplication in numbering, reads as follows:
<< OK ST T. 58 § 3104 >>
A. A user may use an online tool to direct the custodian to disclose to a designated recipient or not to disclose some or all of the user's digital assets, including the content of electronic communications. If the online tool allows the user to modify or delete a direction 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 other record.
B. If a user has not used an online tool to give direction under subsection A of this section or if the custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of attorney, or other record, disclosure to a fiduciary of some or all of the user's digital assets, including the content of electronic communications sent or received by the user.
C. A user's direction under subsection A or B of this section overrides a contrary provision in a terms-of-service agreement that does not require the user to act affirmatively and distinctly from the user's assent to the terms of service.
SECTION 5. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 3105 of Title 58, unless there is created a duplication in numbering, reads as follows:
<< OK ST T. 58 § 3105 >>
A. This act does not change or impair a right of a custodian or a user under a terms-of-service agreement to access and use digital assets of the user.
B. This act does not give a fiduciary or designated recipient any new or expanded rights other than those held by the user for whom, or for whose estate, the fiduciary or designated recipient acts or represents.
C. A fiduciary's or designated recipient's access to digital assets may be modified or eliminated by a user, by federal law, or by a terms-of-service agreement if the user has not provided direction under Section 4 of this act.
SECTION 6. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 3106 of Title 58, unless there is created a duplication in numbering, reads as follows:
<< OK ST T. 58 § 3106 >>
A. When disclosing digital assets of a user under this act, the custodian may, at its sole discretion:
1. Grant a fiduciary or designated recipient full access to the user's account;
2. Grant a fiduciary or designated recipient partial access to the user's account sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or
3. Provide a fiduciary or designated recipient a copy of a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.
B. A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this act.
C. A custodian need not disclose under this act a digital asset deleted by a user.
D. If a user directs or a fiduciary requests a custodian to disclose under this act some, but not all, of the user's digital assets, the custodian need not disclose the assets if segregation of the assets would impose an undue burden on the custodian. If the custodian believes the direction or request imposes an undue burden, the custodian or fiduciary may seek an order from the court to disclose:
1. A subset limited by date of the user's digital assets;
2. All of the user's digital assets to the fiduciary or designated recipient;
3. None of the user's digital assets; or
4. All of the user's digital assets to the court for review in camera.
SECTION 7. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 3107 of Title 58, unless there is created a duplication in numbering, reads as follows:
<< OK ST T. 58 § 3107 >>
If a deceased user consented or a court directs disclosure of the contents of electronic communications of the user, the custodian shall disclose to the personal representative of the estate of the user the content of an electronic communication sent or received by the user if the representative gives the custodian:
1. A written request for disclosure in physical or electronic form;
2. A certified copy of the death certificate of the user;
3. A certified copy of the letter of appointment of the representative or a small-estate affidavit or court order;
4. Unless the user provided direction using an online tool, a copy of the user's will, trust, power of attorney, or other record evidencing the user's consent to disclosure of the content of electronic communications; and
5. If requested by the custodian:
a. a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account,
b. evidence linking the account to the user, or
c. a finding by the court that:
(1) the user had a specific account with the custodian, identifiable by the information specified in subparagraph a of paragraph 5 of this section,
(2) disclosure of the content of electronic communications of the user would not violate 18 U.S.C., Section 2701 et seq., 47 U.S.C., Section 222, or other applicable law,
(3) unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications, or
(4) disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.
SECTION 8. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 3108 of Title 58, unless there is created a duplication in numbering, reads as follows:
<< OK ST T. 58 § 3108 >>
Unless the user prohibited disclosure of digital assets or the court directs otherwise, a custodian shall disclose to the personal representative of the estate of a deceased user, a catalog of electronic communications sent or received by the user and digital assets, other than the content of electronic communications, of the user, if the representative gives the custodian:
1. A written request for disclosure in physical or electronic form;
2. A certified copy of the death certificate of the user;
3. A certified copy of the letter of appointment of the representative or a small-estate affidavit or court order; and
4. If requested by the custodian:
a. a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account,
b. evidence linking the account to the user,
c. an affidavit stating that disclosure of the user's digital assets is reasonably necessary for administration of the estate, or
d. a finding by the court that:
(1) the user had a specific account with the custodian, identifiable by the information specified in subparagraph a of paragraph 4 of this section, or
(2) disclosure of the user's digital assets is reasonably necessary for administration of the estate.
SECTION 9. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 3109 of Title 58, unless there is created a duplication in numbering, reads as follows:
<< OK ST T. 58 § 3109 >>
To the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by the principal and unless directed otherwise by the principal or the court, a custodian shall disclose to the agent the content if the agent gives the custodian:
1. A written request for disclosure in physical or electronic form;
2. An original or copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal;
3. A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and
4. If requested by the custodian:
a. a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account, or
b. evidence linking the account to the principal.
SECTION 10. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 3110 of Title 58, unless there is created a duplication in numbering, reads as follows:
<< OK ST T. 58 § 3110 >>
Unless otherwise ordered by the court, directed by the principal, or provided by a power of attorney, a custodian shall disclose to an agent with specific authority over digital assets or general authority to act on behalf of a principal, a catalog of electronic communications sent or received by the principal and digital assets, other than the content of electronic communications, of the principal if the agent gives the custodian:
1. A written request for disclosure in physical or electronic form;
2. An original or a copy of the power of attorney that gives the agent specific authority over digital assets or general authority to act on behalf of the principal;
3. A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and
4. If requested by the custodian:
a. a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account, or
b. evidence linking the account to the principal.
SECTION 11. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 3111 of Title 58, unless there is created a duplication in numbering, reads as follows:
<< OK ST T. 58 § 3111 >>
Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose to a trustee that is an original user of an account any digital asset of the account held in trust, including a catalog of electronic communications of the trustee and the content of electronic communications.
SECTION 12. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 3112 of Title 58, unless there is created a duplication in numbering, reads as follows:
<< OK ST T. 58 § 3112 >>
Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account the content of an electronic communication sent or received by an original or successor user and carried, maintained, processed, received, or stored by the custodian in the account of the trust if the trustee gives the custodian:
1. A written request for disclosure in physical or electronic form;
2. A certified copy of the trust instrument that includes consent to disclosure of the content of electronic communications to the trustee;
3. A certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and
4. If requested by the custodian:
a. a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust's account, or
b. evidence linking the account to the trust.
SECTION 13. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 3113 of Title 58, unless there is created a duplication in numbering, reads as follows:
<< OK ST T. 58 § 3113 >>
Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose, to a trustee that is not an original user of an account, a catalog of electronic communications sent or received by an original or successor user and stored, carried, or maintained by the custodian in an account of the trust and any digital assets, other than the content of electronic communications, in which the trust has a right or interest if the trustee gives the custodian:
1. A written request for disclosure in physical or electronic form;
2. A certified copy of the trust instrument;
3. A certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and
4. If requested by the custodian:
a. a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust's account, or
b. evidence linking the account to the trust.
SECTION 14. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 3114 of Title 58, unless there is created a duplication in numbering, reads as follows:
<< OK ST T. 58 § 3114 >>
A. After an opportunity for a hearing under Section 3–112 of Title 30 of the Oklahoma Statutes, the court may grant a guardian access to the digital assets of a protected person.
B. Unless otherwise ordered by the court or directed by the user, a custodian shall disclose to a guardian the catalog of electronic communications sent or received by a protected person and any digital assets, other than the content of electronic communications, in which the protected person has a right or interest if the guardian gives the custodian:
1. A written request for disclosure in physical or electronic form;
2. A certified copy of the court order that gives the guardian authority over the digital assets of the protected person; and
3. If requested by the custodian:
a. a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the account of the protected person, or
b. evidence linking the account to the protected person.
C. A guardian with general authority to manage the assets of a protected person may request a custodian of the digital assets of the protected person to suspend or terminate an account of the protected person for good cause. A request made under this section must be accompanied by a certified copy of the court order giving the guardian authority over the protected person's property.
SECTION 15. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 3115 of Title 58, unless there is created a duplication in numbering, reads as follows:
<< OK ST T. 58 § 3115 >>
A. The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including:
1. The duty of care;
2. The duty of loyalty; and
3. The duty of confidentiality.
B. A fiduciary's or designated recipient's authority with respect to a digital asset of a user:
1. Except as otherwise provided in Section 4 of this act, is subject to the applicable terms of service;
2. Is subject to other applicable law, including copyright law;
3. In the case of a fiduciary, is limited by the scope of the fiduciary's duties; and
4. May not be used to impersonate the user.
C. A fiduciary with authority over the property of a decedent, protected person, principal, or settlor has the right to access any digital asset in which the decedent, protected person, principal, or settlor had a right or interest and that is not held by a custodian or subject to a terms-of-service agreement.
D. A fiduciary acting within the scope of the fiduciary's duties is an authorized user of the property of the decedent, protected person, principal, or settlor for the purpose of applicable computer fraud and unauthorized computer access laws.
E. A fiduciary with authority over the tangible, personal property of a decedent, protected person, principal, or settlor:
1. Has the right to access the property and any digital asset stored in it; and
2. Is an authorized user for the purpose of computer fraud and unauthorized computer access laws.
F. A custodian may disclose information in an account to a fiduciary of the user when the information is required to terminate an account used to access digital assets licensed to the user.
G. A fiduciary of a user may request a custodian to terminate the user's account. A request for termination must be in writing, in either physical or electronic form, and accompanied by:
1. If the user is deceased, a certified copy of the death certificate of the user;
2. A certified copy of the letter of appointment of the representative, court order, power of attorney, or trust giving the fiduciary authority over the account; and
3. If requested by the custodian:
a. a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account,
b. evidence linking the account to the user, or
c. a finding by the court that the user had a specific account with the custodian, identifiable by the information specified in subparagraph a of paragraph 3 of subsection G of this section.
SECTION 16. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 3116 of Title 58, unless there is created a duplication in numbering, reads as follows:
<< OK ST T. 58 § 3116 >>
A. Not later than sixty (60) days after receipt of the information required under Sections 7 through 15 of this act, a custodian shall comply with a request under this act from a fiduciary or designated recipient to disclose digital assets or terminate an account. If the custodian fails to comply, the fiduciary or designated recipient may apply to the court for an order directing compliance.
B. An order under subsection A of this section directing compliance must contain a finding that compliance is not in violation of 18 U.S.C., Section 2702.
C. A custodian may notify the user that a request for disclosure or to terminate an account was made under this act.
D. A custodian may deny a request under this act from a fiduciary or designated recipient for disclosure of digital assets or to terminate an account if the custodian is aware of any lawful access to the account following the receipt of the fiduciary's request.
E. This act does not limit a custodian's ability to obtain or require a fiduciary or designated recipient requesting disclosure or termination under this act to obtain a court order which:
1. Specifies that an account belongs to the protected person or principal;
2. Specifies that there is sufficient consent from the protected person or principal to support the requested disclosure; and
3. Contains a finding required by law other than this act.
F. A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good faith in compliance with this act.
SECTION 17. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 3117 of Title 58, unless there is created a duplication in numbering, reads as follows:
<< OK ST T. 58 § 3117 >>
In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
SECTION 18. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 3118 of Title 58, unless there is created a duplication in numbering, reads as follows:
<< OK ST T. 58 § 3118 >>
This act modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C., Section 7001 et seq., but does not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C., Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C., Section 7003(b).
SECTION 19. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 3119 of Title 58, unless there is created a duplication in numbering, reads as follows:
<< OK ST T. 58 § 3119 >>
If any provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.
SECTION 20. This act shall become effective November 1, 2024.
Approved April 23, 2024.
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