In this subtitle the following words have the meanings indicated. “Account” means an arrangement under a terms–of–service agreement in which a custodian carries, maintains, processes, receives, or stores a digital asset of a user or provides goods or services to the user. “Agent” has the meaning stated in § 17–101 of this article. “Carries” means engages in the transmission of electronic communications. “Catalogue of electronic communications” means information that identifies: Each person with whom a user has had an electronic communication; The time and date of the communication; and The electronic address of the person. “Content of an electronic communication” means information concerning the substance or meaning of a communication that: Has been sent or received by a user; 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 Is not readily accessible to the public. “Custodian” means a person who carries, maintains, processes, receives, or stores a digital asset of an account holder. “Designated recipient” means a person chosen by a user using an online tool to administer the digital assets of the user. “Digital asset” means an electronic record in which an individual has a right or interest. “Digital asset” does not include an underlying asset or liability unless the asset or liability is itself an electronic record. “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. “Electronic communication” has the meaning stated in 18 U.S.C. § 2510(12). “Electronic communication service” means a custodian that provides to a user the ability to send or receive an electronic communication. “Fiduciary” means an original, additional, or successor personal representative, guardian, agent, or trustee. “Guardian” means a guardian of the property appointed by a court under Title 13, Subtitle 2 of this article to manage the property of a disabled person or minor or a guardian of the person appointed by a court under Title 13, Subtitle 7 of this article, according to the context in which it is used. “Guardian” includes a limited guardian. “Information” means data, text, images, videos, sounds, codes, computer programs, software, or databases. “Online tool” means an electronic service provided by a custodian that allows a user, in an agreement distinct from the terms–of–service agreement between the custodian and the user, to provide directions for disclosure or nondisclosure of digital assets to a third party. “Person” means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, instrumentality, or other legal entity. “Personal representative” means an executor, administrator, special administrator, or person that performs substantially the same function under a law of this State other than this subtitle. “Power of attorney” has the meaning stated in § 17–101 of this article. “Principal” has the meaning stated in § 17–101 of this article. “Protected person” means an individual for whom a guardian has been appointed. “Protected person” includes an individual for whom an application for the appointment of a guardian is pending. “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. “Remote computing service” means a custodian who 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. § 2510(14). “Terms–of–service agreement” means an agreement that controls the relationship between a user and a custodian. “Trustee” means a fiduciary with legal title to property under an agreement or a declaration that creates a beneficial interest in another. “Trustee” includes an original, additional, or successor trustee or cotrustee, whether or not appointed or confirmed by a court. “User” means a person who has an account with a custodian. “Will” includes a codicil, a testamentary instrument that only appoints a personal representative, or an instrument that revokes or revises a testamentary instrument if the codicil or instrument satisfies the requirements of § 4–102, § 4–103, or § 4–104 of this article.

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

A user may use an online tool to direct a custodian to disclose to a designated recipient or not disclose some or all of the user’s digital assets, including the content of electronic communications sent or received by the user. If the online tool allows the user to modify or delete a direction at any time, a direction under paragraph (1) of this subsection overrides a contrary direction by the user in a will, trust, power of attorney, or other record. If the user does not use an online tool to give direction under subsection (a) of this section or if the custodian fails to provide an online tool, the user may, in a will, trust, power of attorney, or other record, 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. A direction by a user under subsection (a) or (b) of this section shall override a contrary provision in a terms–of–service agreement, if the terms–of–service agreement does not require the user to act affirmatively and distinctly from the user’s assent to the terms of service.

This subtitle does not change or impair the right of a custodian or a user under a terms–of–service agreement to access or use the digital assets of the user. This subtitle does not grant a fiduciary or designated recipient 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. A fiduciary’s or designated recipient’s access to digital assets may be modified or eliminated by: A user; Federal law; or A terms–of–service agreement if the user has not provided direction under § 15–603 of this subtitle.

When disclosing the digital assets of a user under this subtitle, a custodian may in its sole discretion: Grant a fiduciary or designated recipient full access to the user’s account; 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 Provide a fiduciary or designated recipient a copy in a record of a digital asset that, on the date that the custodian received the request for disclosure, the user could have accessed if the user were alive or had full capacity and had access to the account. A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this subtitle. A custodian need not disclose under this subtitle a digital asset deleted by a user. If a user directs or a fiduciary requests a custodian to disclose only a portion of the user’s digital assets under this subtitle, the custodian need not disclose the assets if segregation of the digital assets would impose an undue burden on the custodian. If the custodian believes under paragraph (1) of this subsection that the direction or request imposes an undue burden, the custodian or fiduciary may seek an order from a court to disclose: A subset, limited by date, of the user’s digital assets; All of the user’s digital assets to the fiduciary or designated recipient; None of the user’s digital assets; or All of the user’s digital assets to the court for review in camera.

If a deceased user consented to or a court directs the disclosure of the contents of electronic communications of the user, a custodian shall disclose to the personal representative of the user’s estate the content of an electronic communication sent or received by the user if the personal representative provides the custodian: A written request for disclosure in physical or electronic form; A copy of the certificate of the user’s death; A copy of the letters of administration of the personal representative or court order appointing a special administrator; 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 If requested by the custodian: A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account; Evidence linking the account to the user; or A finding by the court that: The user had a specific account with the custodian, identifiable by the information specified in item (i) of this item; Disclosure of the content of electronic communications of the user would not violate 18 U.S.C. § 2701, et seq., 47 U.S.C. § 222, or other applicable law; Unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications; or Disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.

Unless a user prohibited disclosure of digital assets or a court directs otherwise, a custodian shall disclose to the personal representative of the estate of the user a catalogue of electronic communications sent or received by the user and the digital assets of the user, other than the content of the electronic communications, if the personal representative provides the custodian: A written request for disclosure in physical or electronic form; A copy of the certificate of the user’s death; A copy of the letters of administration of the personal representative or court order appointing a special administrator; and If requested by the custodian: A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account; Evidence linking the account to the user; An affidavit stating that disclosure of the user’s digital assets is reasonably necessary for administration of the estate; or A finding by the court that: The user had a specific account with the custodian, identifiable by the information specified in item (i) of this item; or Disclosure of the catalogue of electronic communications of the user is reasonably necessary for administration of the estate.

To the extent that 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 a court, a custodian shall disclose to the agent the content if the agent provides the custodian: A written request for disclosure in a physical or electronic form; An original or copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal; A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and If requested by the custodian: A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal’s account; or Evidence linking the account to the principal.

Unless otherwise ordered by a court, directed by a 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 catalogue 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 provides the custodian: A written request for disclosure in physical or electronic form; An original or copy of the power of attorney that grants the agent specific authority over digital assets or general authority to act on behalf of the principal; A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and If requested by the custodian: A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal’s account; or Evidence linking the account to the principal.

Unless otherwise ordered by a court or provided in a trust, a custodian shall disclose to a trustee that is an original user of an account the digital assets of the account held in trust, including a catalogue of electronic communications of the trustee and the content of electronic communications.

Unless otherwise ordered by a court, directed by a 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 provides the custodian: A written request for disclosure in physical or electronic form; A copy of the trust instrument or certification of the trust under § 14.5–910 of this article that includes consent to disclosure of the content of electronic communications to the trustee; 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 If requested by the custodian: A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust’s account; or Evidence linking the account to the trust.

Unless otherwise ordered by a court, directed by a user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account a catalogue of electronic communications sent or received by an original or successor user or stored, carried, or maintained by the custodian in an account of the trust and the digital assets, other than electronic communications, in which the trust has a right or interest if the trustee provides the custodian: A written request for disclosure in physical or electronic form; A copy of the trust instrument or certification of the trust under § 14.5–910 of this article; 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 If requested by the custodian: A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust’s account; or Evidence linking the account to the trust.

After an opportunity for hearing under Title 13, Subtitle 2 or Title 13, Subtitle 7 of this article, a court may grant a guardian access to the digital assets of the protected person for whom the guardian has been appointed. Unless otherwise ordered by a court or directed by a user, a custodian shall disclose to a guardian the catalogue of electronic communications sent or received by the protected person and the digital assets, other than the content of electronic communications, in which the protected person has a right or interest if the guardian provides the custodian: A written request for disclosure in physical or electronic form; A copy of the court order that gives the guardian authority over the digital assets of the protected person; and If requested by the custodian: A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the protected person’s account; or Evidence linking the account to the protected person. 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 subsection shall be accompanied by a copy of the court order granting the guardian authority over the protected person’s property.

The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including: The duty of care; The duty of loyalty; and The duty of confidentiality. A fiduciary’s or designated recipient’s authority with respect to a digital asset of a user: Except as otherwise provided in § 15–603 of this subtitle, is subject to the applicable terms of service; Is subject to other applicable law, including copyright law; In the case of a fiduciary, is limited by the scope of the fiduciary’s duties; and May not be used to impersonate the user. A fiduciary with authority over the property of a decedent, protected person, principal, or settlor has the right to access a 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. 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, including § 7–302 of the Criminal Law Article. A fiduciary with authority over the tangible, personal property of a decedent, protected person, principal, or settlor: Has the right to access the property and the digital assets stored in it; and Is an authorized user for the purpose of computer–fraud and unauthorized–computer–access laws, including § 7–302 of the Criminal Law Article. 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. A fiduciary of a user may request a custodian to terminate the user’s account. The fiduciary shall submit the request for termination to the custodian in writing, in either physical or electronic form, accompanied by: If the user is deceased, a copy of the death certificate of the user; A copy of the letters of administration of the personal representative or court order appointing a special administrator, power of attorney, or trust granting the fiduciary authority over the account; and If requested by the custodian: A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account; Evidence linking the account to the user; or A finding by the court that the user had a specific account with the custodian, identifiable by the information specified in item 1 of this item.

No later than 60 days after receipt of the information required under §§ 15–606 through 15–613 of this subtitle, a custodian shall comply with a request under this subtitle from a fiduciary or designated recipient to disclose digital assets or terminate an account. If the custodian fails to comply with the request, the fiduciary or designated recipient may apply to a court for an order directing compliance. An order under subsection (a) of this section directing compliance shall contain a finding that compliance is not in violation of 18 U.S.C. § 2702. A custodian may notify the user that a request for disclosure or termination of an account was made under this subtitle. A custodian may deny a request under this subtitle from a fiduciary or designated recipient for disclosure of digital assets or termination of an account if the custodian is aware of any lawful access to the account following receipt of the fiduciary’s request. This subtitle does not limit a custodian’s ability to obtain or to require a fiduciary or designated recipient requesting disclosure or termination under this subtitle to obtain a court order that: Specifies that an account belongs to the protected person or principal; Specifies that there is sufficient consent from the protected person or principal to support the requested disclosure or termination; and Contains a finding required by law other than this subtitle. 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 subtitle.

In applying and construing this subtitle, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact the Revised Uniform Fiduciary Access to Digital Assets Act.

This subtitle modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq., but does not modify, limit, or supersede Section 101(c) of that Act, 15 U.S.C. § 7001(c), or authorize electronic delivery of the notices described in Section 103(b) of that Act, 15 U.S.C. § 7003(b).

This subtitle applies to: A fiduciary acting under a will or power of attorney executed before, on, or after October 1, 2016; A personal representative acting for a decedent who died before, on, or after October 1, 2016; A guardianship proceeding, whether pending in a court or commenced before, on, or after October 1, 2016; A trustee acting under a trust created before, on, or after October 1, 2016; and A custodian if the user resides in this State or resided in this State at the time of the user’s death.

If a provision of this subtitle or its application to a person or circumstances is held invalid, the invalidity does not affect other provisions or applications of this subtitle that can be given effect without the invalid provision or application, and to this end the provisions of this subtitle are severable.

This subtitle may be cited as the Maryland Fiduciary Access to Digital Assets Act.