CHAPTER 740

740.001

Short title.

History. — s. 2, ch. 2016-46.

740.002

Definitions.

(1) “Account” means an arrangement under a terms-of-service agreement in which the custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user.

(2) “Agent” means a person that is granted authority to act for a principal under a durable or nondurable power of attorney, whether denominated an agent, an attorney in fact, or otherwise. The term includes an original agent, a co-agent, and a successor agent.

(3) “Carries” means to engage in the transmission of electronic communications.

(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) “Content of an electronic communication” means information concerning the substance or meaning of the communication which:

(6) “Court” means a circuit court of this state.

(7) “Custodian” means a person that carries, maintains, processes, receives, or stores a digital asset of a user.

(8) “Designated recipient” means a person chosen by a user through an online tool to administer digital assets of the user.

(9) “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.

(10) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

(11) “Electronic communication” has the same meaning as provided in 18 U.S.C. s. 2510(12).

(12) “Electronic communication service” means a custodian that provides to a user the ability to send or receive an electronic communication.

(13) “Fiduciary” means an original, additional, or successor personal representative, guardian, agent, or trustee.

(14) “Guardian” means a person who is appointed by the court as guardian of the property of a minor or an incapacitated individual. The term includes an original guardian, a coguardian, and a successor guardian, as well as a person appointed by the court as an emergency temporary guardian of the property.

(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 which 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, trust, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.

(18) “Personal representative” means the fiduciary appointed by the court to administer the estate of a deceased individual pursuant to letters of administration or an order appointing a curator or administrator ad litem for the estate. The term includes an original personal representative, a copersonal representative, and a successor personal representative, as well as a person who is entitled to receive and collect a deceased individual’s property pursuant to an order of

summary administration issued pursuant to

chapter 735.

(19) “Power of attorney” means a record that grants an agent authority to act in the place of a principal pursuant to

chapter 709.

(20) “Principal” means an individual who grants authority to an agent in a power of attorney.

(21) “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.

(22) “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. s. 2510(14).

(23) “Terms-of-service agreement” means an agreement that controls the relationship between a user and a custodian.

(24) “Trustee” means a fiduciary that holds legal title to property under an agreement, declaration, or trust instrument that creates a beneficial interest in the settlor or other persons. The term includes an original trustee, a cotrustee, and a successor trustee.

(25) “User” means a person that has an account with a custodian.

(26) “Ward” means an individual for whom a guardian has been appointed.

(27) “Will” means an instrument admitted to probate, including a codicil, executed by an individual in the manner prescribed by the Florida Probate Code, which disposes of the individual’s property on or after his or her death. The term includes an instrument that merely appoints a personal representative or revokes or revises another will.

History. — s. 3, ch. 2016-46.

740.003 User direction for disclosure of digital assets.

(1) 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.

(2) If a user has not used an online tool to give direction under subsection (1) or if the custodian has not provided an online tool, the user may allow or prohibit 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, in a will, trust, power of attorney, or other record.

(3) A user’s direction under subsection (1) or subsection (2) 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.

History. — s. 4, ch. 2016-46.

740.004 Terms-of-service agreement preserved.

(1) This

chapter does not change or impair a right of a custodian or a user under a terms-of-service agreement to access and use the digital assets of the user.

(2) This

chapter does not give a fiduciary or a designated recipient any new or expanded rights other than those held by the user for whom, or for whose estate or trust, the fiduciary or designated recipient acts or represents.

(3) 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 s. 740.003.

History. — s. 5, ch. 2016-46.

740.005 Procedure for disclosing digital assets.

(1) When disclosing the digital assets of a user under this chapter, the custodian may, at its sole discretion:

(2) A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this chapter.

(3) A custodian is not required to disclose under this

chapter a digital asset deleted by a user.

(4) If a user directs or a fiduciary requests a custodian to disclose under this

chapter some, but not all, of the user’s digital assets to the fiduciary or a designated recipient, the custodian is not required to 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 the fiduciary may seek an order from the court to disclose:

History. — s. 6, ch. 2016-46.

740.006 Disclosure of content of electronic communications of deceased user.

(1) A written request for disclosure which is in physical or electronic form;

(2) A certified copy of the death certificate of the user;

(3) A certified copy of the letters of administration, the order authorizing a curator or administrator ad litem, the order of

summary administration issued pursuant to

chapter 735, or other 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:

History. — s. 7, ch. 2016-46.

740.007 Disclosure of other digital assets of deceased user.

(1) A written request for disclosure which is in physical or electronic form;

(2) A certified copy of the death certificate of the user;

(3) A certified copy of the letters of administration, the order authorizing a curator or administrator ad litem, the order of

summary administration issued pursuant to

chapter 735, or other court order; and

(4) If requested by the custodian:

History. — s. 8, ch. 2016-46.

740.008 Disclosure of content of electronic communications of principal.

(1) A written request for disclosure which is 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:

History. — s. 9, ch. 2016-46.

740.009 Disclosure of other digital assets of principal.

(1) A written request for disclosure which is in physical or electronic form;

(2) An original or a copy of the power of attorney which 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:

History. — s. 10, ch. 2016-46.

740.01 Disclosure of digital assets held in trust when trustee is the original user.

History. — s. 11, ch. 2016-46.

740.02 Disclosure of content of electronic communications held in trust when trustee is not the original user.

(1) A written request for disclosure which is in physical or electronic form;

(2) A certified copy of the trust instrument, or a certification of trust under s. 736.1017, which 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 that the trustee is a currently acting trustee of the trust; and

(4) If requested by the custodian:

History. — s. 12, ch. 2016-46.

740.03 Disclosure of other digital assets held in trust when trustee is not the original user.

(1) A written request for disclosure which is in physical or electronic form;

(2) A certified copy of the trust instrument, or a certification of trust under s. 736.1017;

(3) A certification by the trustee, under penalty of perjury, that the trust exists and that the trustee is a currently acting trustee of the trust; and

(4) If requested by the custodian:

History. — s. 13, ch. 2016-46.

740.04 Disclosure of digital assets to guardian of ward.

(1) After an opportunity for a hearing under

chapter 744, the court may grant a guardian access to the digital assets of a ward.

(2) 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 the ward and any digital assets in which the ward has a right or interest, other than the content of electronic communications, if the guardian gives the custodian:

(3) A guardian with general authority to manage the property of a ward may request a custodian of the digital assets of the ward to suspend or terminate an account of the ward 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 ward’s property.

History. — s. 14, ch. 2016-46.

740.05 Fiduciary duty and authority.

(1) The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including:

(2) A fiduciary’s or designated recipient’s authority with respect to a digital asset of a user:

(3) A fiduciary with authority over the tangible personal property of a decedent, ward, principal, or settlor has the right to access any digital asset in which the decedent, ward, principal, or settlor had or has a right or interest and that is not held by a custodian or subject to a terms-of-service agreement.

(4) A fiduciary acting within the scope of the fiduciary’s duties is an authorized user of the property of the decedent, ward, principal, or settlor for the purpose of applicable computer fraud and unauthorized computer access laws, including under

chapter 815.

(5) A fiduciary with authority over the tangible personal property of a decedent, ward, principal, or settlor:

(6) 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.

(7) A fiduciary of a user may request a custodian to terminate the user’s account. A request for termination must be in writing, in paper or electronic form, and accompanied by:

History. — s. 15, ch. 2016-46.

740.06 Custodian compliance and immunity.

(1) Not later than 60 days after receipt of the information required under ss. 740.006-740.04, a custodian shall comply with a request under this

chapter 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.

(2) An order under subsection (1) directing compliance must contain a finding that compliance is not in violation of 18 U.S.C. s. 2702.

(3) A custodian may notify a user that a request for disclosure or to terminate an account was made under this chapter.

(4) A custodian may deny a request under this

chapter 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.

(5) This

chapter does not limit a custodian’s ability to obtain or require a fiduciary or designated recipient requesting disclosure or termination under this

chapter to obtain a court order that:

(6) 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 chapter.

History. — s. 16, ch. 2016-46.

740.07 Relation to Electronic Signatures in Global and National Commerce Act.

History. — s. 17, ch. 2016-46.

740.08 Applicability.

(1) Subject to subsection (3), this

chapter applies to:

(2) This

chapter applies to a custodian if the user resides in this state or resided in this state at the time of the user’s death.

(3) This

chapter does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer’s business.

History. — s. 18, ch. 2016-46.

740.09 Severability.

History. — s. 19, ch. 2016-46.

740.11 Relation to wills.

History. — s. 39, ch. 2019-71.