Oregon § 119.086 - Short title

§ 119.086. Short title

119.086 Short title

119.005 [1959 c.419 3,4; 1969 c.520 24, 24a; 1973 c.344 2; 1977 c.666 17; repealed by 1997 c.99 54]

DEFINITIONS

119.006 Definitions for ORS 119.006 to 119.081. As used in ORS 119.006 to 119.081:

(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 a person designated as an agent under a power of attorney in accordance with ORS 127.005 to 127.045.

(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 has the meaning given that term in ORS 125.005.

(6) Content of an electronic communication means information concerning the substance or meaning of the communication that:

(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 a circuit court in this state.

(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 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. Digital asset 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. 2510(12).

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

(14) Fiduciary means a person that is an original, additional or successor personal representative, conservator, agent or trustee.

(15) Information means data, text, images, videos, sounds, codes, computer programs, software, databases and similar intelligence of any nature.

(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 the 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 or special administrator, or a person legally authorized to perform substantially the same functions.

(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. Protected person 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. 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 person. Trustee 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. [2016 c.19 2]

119.010 [Amended by 1961 c.456 1; 1977 c.666 18; repealed by 1997 c.99 54]

DISCLOSURE OF DIGITAL ASSETS

119.011 Authority of custodian. (1) When disclosing digital assets of a user under ORS 119.006 to 119.081, the custodian may, in the custodian s sole discretion:

(a) Grant a fiduciary or designated recipient full access to the user s account;

(b) 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

(c) Provide a fiduciary or designated recipient a copy in 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.

(2) A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under ORS 119.006 to 119.081.

(3) A custodian need not disclose under ORS 119.006 to 119.081 a digital asset deleted by a user.

(4) If a user directs, or a fiduciary requests, a custodian to disclose some, but not all, of the user s digital assets under ORS 119.006 to 119.081, the custodian need not disclose the digital assets if segregation of the digital 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:

(a) A subset limited by date of the user s digital assets;

(b) All of the user s digital assets to the fiduciary or designated recipient;

(c) None of the user s digital assets; or

(d) All of the user s digital assets to the court for review in camera. [2016 c.19 6]

119.015 [1977 c.666 21; 1979 c.448 1; repealed by 1997 c.99 54]

119.016 Use of online tool to direct disclosure. (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) 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.

(3) A user s direction under subsection (1) or (2) 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. [2016 c.19 4]

119.020 [Amended by 1961 c.456 2; 1973 c.498 2; 1977 c.666 19; 1985 c.761 2; repealed by 1997 c.99 54]

119.021 Disclosure of content of electronic communications to personal representative. If a deceased user consented to, or a court directs, disclosure of the content 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 personal 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 personal representative or a simple 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, user name, 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:

(A) The user had a specific account with the custodian, identifiable by the information specified in paragraph (a) of this subsection;

(B) 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;

(C) Unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications; or

(D) Disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate. [2016 c.19 7; 2023 c.17 20]

119.022 [1977 c.666 21b; 1985 c.761 3; repealed by 1997 c.99 54]

119.025 [1959 c.419 2; repealed by 1981 c.705 8]

119.026 Disclosure of catalog of electronic communications to personal representative. 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 personal 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 personal representative or a simple estate affidavit or court order; and

(4) If requested by the custodian:

(a) A number, user name, 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:

(A) The user had a specific account with the custodian, identifiable by the information specified in paragraph (a) of this subsection; or

(B) Disclosure of the user s digital assets is reasonably necessary for administration of the estate. [2016 c.19 8; 2023 c.17 21]

119.030 [Repealed by 1959 c.419 13]

119.031 [1959 c.419 5; 1965 c.357 1; 1971 c.525 1; 1977 c.666 22; repealed by 1997 c.99 54]

119.032 Disclosure of content of electronic communications to agent designated in power of attorney. 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, user name, 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. [2016 c.19 9]

119.035 [1959 c.419 6; 1961 c.456 3; 1971 c.653 1; 1973 c.793 2; 1977 c.666 23; 1987 c.293 68; repealed by 1997 c.99 54]

119.036 Disclosure of catalog of electronic communications to agent designated in power of attorney. Unless otherwise ordered by the court, directed by the principal or provided in 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, user name, 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. [2016 c.19 10]

119.037 [1975 c.177 3; 1979 c.190 399; repealed by 1997 c.99 54]

119.040 [Repealed by 1959 c.419 13]

119.041 [1959 c.419 7; 1977 c.666 24; repealed by 1997 c.99 54]

119.042 Disclosure to trustee who is original user. 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. [2016 c.19 11]

119.045 [1959 c.419 8; 1961 c.456 4; 1977 c.666 24a; repealed by 1997 c.99 54]

119.046 Disclosure of content of electronic communications to trustee who is not original user. 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 or a certification of the trust under ORS 130.860 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, user name, 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. [2016 c.19 12]

119.050 [Repealed by 1959 c.419 13]

119.051 [1959 c.419 9; 1977 c.666 25; repealed by 1997 c.99 54]

119.052 Disclosure of catalog of electronic communications to trustee who is not original user. 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 or a certification of the trust under ORS 130.860;

(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, user name, 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. [2016 c.19 13]

119.055 [1959 c.419 10; repealed by 1977 c.666 36]

119.056 Disclosure to conservator; court order. (1) After an opportunity for a hearing, the court may grant a conservator access to the digital assets of a protected person.

(2) Unless otherwise ordered by the court or directed by the user, a custodian shall disclose to the conservator 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 conservator gives the custodian:

(a) A written request for disclosure in physical or electronic form;

(b) A certified copy of the court order that gives the conservator authority over the digital assets of the protected person; and

(c) If requested by the custodian:

(A) A number, user name, 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.

(3) A conservator 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 the account of the protected person for good cause. A request made under this subsection must be accompanied by a certified copy of the court order giving the conservator authority over the protected person s property. [2016 c.19 14]

119.060 [Amended by 1957 c.158 1; repealed by 1959 c.419 13]

119.061 [1959 c.419 11; 1973 c.703 4; repealed by 1977 c.666 36]

RIGHTS AND DUTIES OF PARTIES

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

(a) The duty of care;

(b) The duty of loyalty; and

(c) The duty of confidentiality.

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

(a) Except as otherwise provided in ORS 119.016, is subject to the applicable terms of service;

(b) Is subject to other applicable law, including copyright law;

(c) In the case of a fiduciary, is limited by the scope of the fiduciary s duties; and

(d) May not be used to impersonate the user.

(3) 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 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, protected person, principal or settlor for the purpose of applicable computer fraud and unauthorized computer access laws, including this state s laws on unauthorized computer access.

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

(a) Has the right to access the property and any digital asset stored in the property; and

(b) Is an authorized user for the purpose of computer fraud and unauthorized computer access laws, including this state s laws on unauthorized computer access.

(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 either physical or electronic form, and accompanied by:

(a) If the user is deceased, a certified copy of the death certificate of the user;

(b) A certified copy of the letter of appointment of the personal representative, a simple estate affidavit or court order, a court order, a power of attorney or a trust giving the fiduciary authority over the account; and

(c) If requested by the custodian:

(A) A number, user name, 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 this paragraph. [2016 c.19 15; 2023 c.17 22]

119.065 [1959 c.419 12; 1969 c.110 1; 1977 c.666 26; 1987 c.646 7; repealed by 1997 c.99 54]

119.066 Requests to disclose digital assets or terminate account; custodian s duty to comply; court order; immunity from liability. (1) Not later than 60 days after receipt of the information required under ORS 119.021 to 119.062, a custodian shall comply with a request 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. 2702.

(3) A custodian may notify the user that a request for disclosure or to terminate an account was made under ORS 119.006 to 119.081.

(4) A custodian may deny a request under ORS 119.006 to 119.081 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) ORS 119.006 to 119.081 do not limit a custodian s ability to obtain or require a fiduciary or designated recipient requesting disclosure or termination 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 under ORS 119.006 to 119.081.

(6) A custodian and the custodian s officers, employees and agents are immune from liability for an act or omission done in good faith in compliance with ORS 119.006 to 119.081. [2016 c.19 16]

119.070 [Amended by 1973 c.254 10; repealed by 1997 c.99 54]

119.071 Rights of custodians, users, fiduciaries and designated recipients. (1) ORS 119.006 to 119.081 do 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.

(2) ORS 119.006 to 119.081 do 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, 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 ORS 119.016. [2016 c.19 5]

GENERAL PROVISIONS

119.076 Uniformity of application and construction. 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 the enacting states. [2016 c.19 17]

119.080 [Amended by 1959 c.75 1; 1975 c.593 5; 1977 c.666 27; 1982 s.s.1 c.16 4; repealed by 1997 c.99 54]

119.081 Effect on other laws. ORS 119.006 to 119.081 modify, limit or supersede the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001 et seq., but do not modify, limit or supersede 15 U.S.C. 7001(c) or authorize electronic delivery of any of the notices described in 15 U.S.C. 7003(b). [2016 c.19 18]

119.086 Short title. ORS 119.006 to 119.081 may be cited as the Revised Uniform Fiduciary Access to Digital Assets Act (2015). [2016 c.19 1]

119.100 [1959 c.285 2; 1963 c.67 1; 1975 c.593 6; 1975 c.762 14; repealed by 1977 c.666 36]

119.110 [Amended by 1959 c.273 6; repealed by 1997 c.99 54]

119.120 [Amended by 1957 c.159 1; 1961 c.456 5; 1971 c.653 2; 1973 c.254 11; 1977 c.666 28; repealed by 1997 c.99 54]

119.130 [Amended by 1973 c.254 18; 1975 c.593 7; repealed by 1977 c.666 36]

119.140 [Amended by 1961 c.456 6; 1973 c.254 19; 1975 c.593 8; repealed by 1977 c. 666 36]

119.150 [Amended by 1971 c.567 11; 1977 c.666 29; 1977 c.870 27; 1985 c.85 7; 1995 c.650 52; repealed by 1997 c.99 54]

119.160 [1959 c.198 2; repealed by 1997 c.99 54]

119.210 [Amended by 1973 c.254 12; 1975 c.762 15; repealed by 1977 c.870 18 (119.211 enacted in lieu of 119.210)]

119.211 [1977 c.870 19 (enacted in lieu of 119.210); 1995 c.650 51; repealed by 1997 c.99 54]

119.220 [Amended by 1959 c.306 1; 1973 c.254 13; 1977 c.666 30; 1977 c.870 28; 1985 c.85 8; 1987 c.758 6; repealed by 1997 c.99 54]

119.230 [Repealed by 1975 c.762 19]

119.240 [Repealed by 1977 c.870 59]

119.250 [Amended by 1973 c.254 14; repealed by 1975 c.762 19]

119.260 [Repealed by 1975 c.762 19]

119.270 [Amended by 1971 c.567 12; 1973 c.254 15; 1975 c.762 16; repealed by 1977 c.666 36 and 1977 c.870 59]

119.280 [Amended by 1971 c.567 13; repealed by 1985 c.85 13]

119.290 [Amended by 1975 c.593 9; repealed by 1997 c.99 54]

119.300 [Amended by 1973 c.254 16; 1975 c.593 10; repealed by 1977 c.666 36]

119.310 [Amended by 1991 c.331 35; repealed by 1997 c.99 54]

119.320 [Amended by 1973 c.254 20; 1975 c.593 11; repealed by 1977 c.666 36]

119.330 [Amended by 1973 c.254 17; 1975 c.593 12; repealed by 1977 c.666 36]

119.340 [Repealed by 1997 c.99 54]

119.350 [Repealed by 1997 c.99 54]

119.360 [Amended by 1977 c.666 31; 1977 c.870 28a; 1985 c.85 9; repealed by 1997 c.99 54]

119.370 [Amended by 1987 c.758 10; repealed by 1997 c.99 54]

119.380 [Repealed by 1997 c.99 54]

119.510 [Repealed by 1981 c.705 8]

119.515 [1979 c.690 7; 1983 c.633 2; 1987 c.158 18a; repealed by 1997 c.99 54]

119.520 [Repealed by 1959 c.273 8]

119.525 [1979 c.516 5; repealed by 1997 c.99 54]

119.990 [Amended by 1953 c.703 1; subsection (4) enacted as 1969 c.209 1; 1975 c.762 17; 1979 c.690 8; 1981 c.724 7; repealed by 1997 c.99 54]

_______________