2021 Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 1 - Fiduciary
Part 15 - Revised Uniform Fiduciary Access to Digital Assets Act
§ 15-1-1502. Definitions

In this part 15:

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. “Conservator” means a person appointed by a court to manage the estate of a living individual. The term includes a limited conservator.
6. “Content of an electronic communication” means information concerning the substance or meaning of a communication that:
   1. Has been sent or received by a user;
   2. 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
   3. Is not readily accessible to the public.

7. “Court” means the district court, except in the city and county of Denver where it is the probate court.
8. “Custodian” means a person that carries, maintains, processes, receives, or stores a digital asset of a user.
9. “Designated recipient” means a person chosen by a user using an on-line 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. sec. 2510(12), as amended.
13. “Electronic-communication service” means a custodian that provides to a user the ability to send or receive an electronic communication.
14. “Fiduciary” means an original, additional, or successor personal representative, conservator, agent, or trustee.
15. “Information” means data, text, images, videos, sounds, codes, computer programs, software, databases, or the like.
16. “On-line 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 law of this state other than this part 15.
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 conservator has been appointed. The term includes an individual for whom an application for the appointment of a conservator 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. sec. 2510(14), as amended.
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 that has an account with a custodian.
27. “Will” includes a codicil, testamentary instrument that only appoints an executor, and instrument that revokes or revises a testamentary instrument.
    1. any wire or oral communication;
    2. any communication made through a tone-only paging device;
    3. any communication from a tracking device (as defined in section 3117 of this title); or
    4. electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds.

History. Source: L. 2016: Entire part added,(SB 16-088), ch. 71, p. 179, § 1, effective August 10.

Many of the definitions are based on those in the Uniform Probate Code: agent (UPC Section 1-201(1)), conservator (UPC Section 5-102(1)), court (UPC Section 1- 201(8)), electronic (UPC Section 5B-102(3)), fiduciary (UPC Section 1-201(15)), person (UPC Section 5B-101(6)), personal representative (UPC Section 1-201(35)), power of attorney (UPC Section 5B-102(7)), principal (UPC Section 5B-102(9)), protected person (UPC Section 5-102(8)), record (UPC Section 1-201(41)), and will (UPC Section 1- 201(57)). The definition of “information” is based on that in the Uniform Electronic Transactions Act, Section 2, subsection (11). Many of the other definitions are either drawn from federal law, as discussed below, or are new for this act.

The definition of “account” is broadly worded to encompass any contractual arrangement subject to a terms-of-service agreement, but limited for the purpose of this act by the requirement that the custodian carry, maintain, process, receive, or store a digital asset of the user.

The definition of “digital asset” expressly excludes underlying assets such as funds held in an online bank account. Because records may exist in both electronic and non- electronic formats, this definition clarifies the scope of the act and the limitation on the type of records to which it applies. The term includes types of electronic records currently in existence and yet to be invented. It includes any type of electronically-stored information, such as: 1) information stored on a user's computer and other digital devices; 2) content uploaded onto websites; and 3) rights in digital property. It also includes records that are either the catalogue or the content of an electronic communication. See 18 U.S.C. Section 2702(a)(2); James D. Lamm, Christina L. Kunz, Damien A. Riehl and Peter John Rademacher, , 68 U. Miami L. Rev. 385, 388 (2014) (available at: http://goo.gl/T9jX1d).

The term “catalogue of electronic communications” is designed to cover log-type information about an electronic communication such as the email addresses of the sender and the recipient, and the date and time the communication was sent.

The term “content of an electronic communication” is adapted from 18 U.S.C. Section 2510(8), which provides that content: “when used with respect to any wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication.” The definition is designed to cover only content subject to the coverage of Section 2702 of the Electronic Communications Privacy Act (ECPA), 18 U.S.C. Section 2510 et seq.; it does not include content not subject to ECPA. Consequently, the “content of an electronic communication”, as used later throughout Revised UFADAA, refers to information in the body of an electronic message that is not readily accessible to the public; if the information were readily accessible to the public, it would not be subject to the privacy protections of federal law under ECPA. See S. Rep. No. 99-541, at 36 (1986). Example: X uses a Twitter account to send a message. If the tweet is sent only to other people who have been granted access to X's tweets, then it meets Revised UFADAA's definition of “content of an electronic communication.” But, if the tweet is completely public with no access restrictions, then it does not meet the act's definition of “content of an electronic communication.” ECPA does not apply to private e-mail service providers, such as employers and educational institutions. See 18 U.S.C. Section 2702(a)(2); James D. Lamm, Christina L. Kunz, Damien A. Riehl and Peter John Rademacher, , 68 U. Miami L. Rev. 385, 404 (2014) (available at: http://goo.gl/T9jX1d).

A “user” is a person that has an account with a custodian, and includes a deceased individual that entered into the agreement while alive. A fiduciary can be a user when the fiduciary opens the account.

The definition of “carries” is drawn from federal law, 47 U.S.C. Section 1001(8).

A “custodian” includes any entity that provides or stores electronic data for a user.

The fiduciary's access to a record defined as a “digital asset” does not mean the fiduciary the asset or may engage in transactions with the asset. Consider, for example, a fiduciary's legal rights with respect to funds in a bank account or securities held with a broker or other custodian, regardless of whether the bank, broker, or custodian has a brick-and-mortar presence. This act affects electronic records concerning the bank account or securities, but does not affect the authority to engage in transfers of title or other commercial transactions in the funds or securities, even though such transfers or other transactions might occur electronically. Revised UFADAA only deals with the right of the fiduciary to access all relevant electronic communications and digital assets accessible through the online account. An entity may not refuse to provide access to online records any more than the entity can refuse to provide the fiduciary with access to hard copy records.

An “electronic communication” is a particular type of digital asset subject to the privacy protections of the Electronic Communications Privacy Act. It includes email, text messages, instant messages, and any other electronic communication between private parties. The definition of “electronic communication” is that set out in 18 U.S.C. Section 2510(12): “electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include--

The definition of “electronic-communication service” is drawn from 18 U.S.C. Section 2510(15): “any service which provides to users thereof the ability to send or receive wire or electronic communications.” The definition of “remote-computing service” is adapted from 18 U.S.C. Section 2711(2): “the provision to the public of computer storage or processing services by means of an electronic communications system.” The definition refers to 18 U.S.C. Section 2510(14), which defines an electronic communications system as: “any wire, radio, electromagnetic, photooptical or photoelectronic facilities for the transmission of wire or electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications.”

A “fiduciary” under this act occupies a status recognized by state law, and a fiduciary's powers under this act are subject to the relevant limits established by other state laws.

An “online tool” is a mechanism by which a user names an individual to manage the user's digital assets after the occurrence of a future event, such as the user's death or incapacity. The named individual is referred to as the “designated recipient” in the act to differentiate the person from a fiduciary. A designated recipient may perform many of the same tasks as a fiduciary, but is not held to the same legal standard of conduct.

The term “record” includes information available on both tangible and electronic media. Revised UFADAA applies only to electronic records.

The “terms-of-service agreement” definition relies on the definition of “agreement” found in UCC Section 1-201(b)(3) (“the bargain of the parties in fact, as found in their language or inferred from other circumstances, including course of performance, course of dealing, or usage of trade”). It refers to any agreement that controls the relationship between a user and a custodian, even though it might be called a terms-of-use agreement, a click-wrap agreement, a click-through license, or a similar term. State and federal law determine capacity to enter into a binding terms-of-service agreement.