Colorado § 15-1-1516 - Custodian compliance and immunity.

§ 15-1-1516. Custodian compliance and immunity.

(1) Not later than sixty days after receipt of the information required under sections 15-1-1507 to 15-1-1515, a custodian shall comply with a request under this part 15 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) of this section directing compliance must contain a finding that compliance is not in violation of 18 U.S.C. sec. 2702, as amended.

(3) A custodian may notify the user that a request for disclosure or to terminate an account was made under this part 15.

(4) A custodian may deny a request under this part 15 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 part 15 does not limit a custodian's ability to obtain, or to require a fiduciary or designated recipient requesting disclosure or termination under this part 15 to obtain, a court order that:

(a) Specifies that an account belongs to the protected person or principal;

(b) Specifies that there is sufficient consent from the protected person or principal to support the requested disclosure; and

(c) Contains a finding required by law other than this part 15.

(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 part 15.

Source: L. 2016: Entire part added, (SB 16-088), ch. 71, p. 189, § 1, effective August 10.

OFFICIAL COMMENT

This section establishes that custodians are protected from liability when they act in accordance with the procedures of this act and in good faith. The types of actions covered include disclosure as well as transfer of copies. The critical issue in conferring immunity is the source of the liability. Direct liability is not subject to immunity; indirect liability is subject to immunity.

Direct liability could only arise from noncompliance with a judicial order issued under sections 1507 to 1515. Upon determination of a right of access under those sections, a court may issue an order to grant access under section 1516. Section 1516(2) requires that an order directing compliance contain a finding that compliance is not in violation of 18 U.S.C. Section 2702. Noncompliance with that order would give rise to liability for contempt. There is no immunity from this liability.

Indirect liability could arise from granting a right of access under this act. Access to a digital asset might invade the privacy or the harm the reputation of the decedent, protected person, principal, or settlor, it might harm the family or business of the decedent, protected person, principal, or settlor, and it might harm other persons. The grantor of access to the digital asset is immune from liability arising out of any of these circumstances if the grantor acted in good faith to comply with this act. If there is a judicial order under section 1516, compliance with the order establishes good faith. Absent a judicial order under section 1516, good faith must be established by the grantor's assessment of the requirements of this act. Further, Section 1516(5) allows the custodian to verify that the account belongs to the person represented by the fiduciary.