Chapter 711

711.04(2) (2) If a user has not used an online tool to give direction under sub. (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 property, including the content of electronic communications sent or received by the user, in a will, trust, any other governing instrument, power of attorney, or consent instrument.

711.04(3) (3) A user’s direction under sub. (1) or (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.

711.04 History History: 2015 a. 300; 2023 a. 127.

711.05 711.05 Disclosure of digital property; personal representative of a deceased user.

711.05(1) (1) Digital property other than content of electronic communications. Unless a user prohibited disclosure of digital property or the court directs otherwise, a custodian shall disclose to the personal representative of the deceased user’s estate a catalogue of electronic communications sent or received by the deceased user and digital property, other than the content of electronic communications sent or received by the deceased user, in which the deceased user’s estate has a right or interest, if the personal representative gives the custodian all of the following:

711.05(1)(a) (a) A written request for disclosure in physical or electronic form.

711.05(1)(b) (b) A certified copy of the death record of the user.

711.05(1)(c) (c) One of the following to establish the personal representative’s authority over the deceased user’s digital property:

711.05(1)(c)1. 1. A certified copy of the letters of appointment of the personal representative or special administrator.

711.05(1)(c)2. 2. A certified copy of a summary proceeding order under s. 867.01 or 867.02.

711.05(1)(c)3. 3. An original or copy of an affidavit under s. 867.03.

711.05(1)(c)4. 4. An original or copy of an application under s. 867.046.

711.05(1)(d) (d) If requested by the custodian, any of the following:

711.05(1)(d)1. 1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account.

711.05(1)(d)2. 2. Evidence linking the account to the user.

711.05(1)(d)3. 3. An affidavit stating that disclosure of the user’s digital property is reasonably necessary for administration of the estate.

711.05(1)(d)4. 4. A court order that includes any of the following findings:

711.05(1)(d)4.a. a. The user had a specific account with the custodian, identifiable by the information specified in subd. 1.

711.05(1)(d)4.b. b. The disclosure of the user’s digital property is reasonably necessary for administration of the estate.

711.05(2) (2) Disclosure of content of electronic communications; deceased user. If a deceased user consented or a court directs disclosure of the contents of electronic communications of a deceased user, the custodian shall disclose to the personal representative of the deceased user’s estate the content of an electronic communication sent or received by the user, in which the deceased user’s estate has a right or interest, if the personal representative gives the custodian all of the following:

711.05(2)(a) (a) The items described in sub. (1) (a) to (c).

711.05(2)(b) (b) Unless the user provided direction using an online tool, a copy of the user’s will, certification of trust under s. 701.1013, other governing instrument, or consent instrument evidencing the deceased user’s consent to disclosure of the content of electronic communications.

711.05(2)(c) (c) If requested by the custodian, any of the following:

711.05(2)(c)1. 1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account.

711.05(2)(c)2. 2. Evidence linking the account to the user.

711.05(2)(c)3. 3. A court order that includes any of the following findings:

711.05(2)(c)3.a. a. The user had a specific account with the custodian that is identifiable by the information specified in subd. 1.

711.05(2)(c)3.b. b. The disclosure of the content of electronic communications of the user does not violate 18 USC 2701 et seq., 47 USC 222, or other applicable law.

711.05(2)(c)3.c. c. Unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications.

711.05(2)(c)3.d. d. The disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.

711.05 History History: 2015 a. 300; 2017 a. 334; 2023 a. 127.

711.06 711.06 Disclosure of digital property; agent under a power of attorney.

711.06(1) (1) Disclosure of digital property other than content of electronic communications; principal. 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 the principal’s digital property or general authority to act on behalf of a principal a catalogue of electronic communications sent or received by the principal and digital property, other than the content of electronic communications, in which the principal has a right or interest, if the agent gives the custodian all of the following:

711.06(1)(a) (a) A written request for disclosure in physical or electronic form.

711.06(1)(b) (b) An original or a copy of the power of attorney that gives the agent specific authority over digital property or general authority to act on behalf of the principal.

711.06(1)(c) (c) A certification by the agent, under penalty of perjury, that the power of attorney is in effect.

711.06(1)(d) (d) If requested by the custodian, any of the following:

711.06(1)(d)1. 1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal’s account.

711.06(1)(d)2. 2. Evidence linking the account to the principal.

711.06(2) (2) Disclosure of content of electronic communications; principal. To the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by the principal, or to the extent a consent instrument expressly consents to the disclosure to the agent the content of electronic communications sent or received by the principal, and unless directed otherwise by the principal or the court, a custodian shall grant an agent authority over the content of electronic communications or disclose to the agent the content of electronic communications if the agent gives the custodian all of the following:

711.06(2)(a) (a) The items described in sub. (1) (a), (c), and (d).

711.06(2)(b) (b) An original or a copy of the power of attorney that expressly grants the agent authority over the content of electronic communications of the principal or the consent instrument that expressly grants consent to disclosure to the agent of the content of electronic communications of the principal.

711.06 History History: 2015 a. 300; 2023 a. 127.

711.07 711.07 Disclosure of digital property held in trust.

711.07(1) (1) Disclosure of digital property held in trust; trustee is original user. Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose to a trustee who is an original user of an account any digital property of the account that is held in trust, including a catalogue of electronic communications of the trustee and the content of electronic communications.

711.07(2) (2) Disclosure of digital property other than content of electronic communications; trustee 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 catalogue 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 property, other than the content of electronic communications, in which the trust has a right or interest, if the trustee gives the custodian all of the following:

711.07(2)(a) (a) A written request for disclosure in physical or electronic form.

711.07(2)(b) (b) A certification of the trust under s. 701.1013.

711.07(2)(c) (c) A certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust.

711.07(2)(d) (d) If requested by the custodian, any of the following:

711.07(2)(d)1. 1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust’s account.

711.07(2)(d)2. 2. Evidence linking the account to the trust.

711.07(3) (3) Disclosure of contents of electronic communications held in trust; trustee 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 trust’s account, in which the trust has a right or interest, if the trustee gives the custodian all of the following:

711.07(3)(a) (a) The items described in sub. (2) (a), (c), and (d).

711.07(3)(b) (b) A consent instrument or certification of the trust under s. 701.1013 that includes an original or successor user’s consent to disclosure of the content of electronic communications to the trustee.

711.07 History History: 2015 a. 300; 2023 a. 127.

711.08 711.08 Disclosure of digital property; conservator or guardian of protected person.

711.08(1) (1) After an opportunity for a hearing under s. 54.10, the court may grant a guardian access to the digital property of a protected person.

711.08(2) (2) After an opportunity for a hearing under s. 54.76, the court may grant a conservator access to the digital property of a protected person.

711.08(3) (3) Unless otherwise ordered by the court or directed by the user, a custodian shall disclose to a guardian or custodian the catalogue of electronic communications sent or received by a protected person and any digital property, other than the content of electronic communications, in which the protected person has a right or interest if the guardian or conservator gives the custodian all of the following:

711.08(3)(a) (a) A written request for disclosure in physical or electronic form.

711.08(3)(b) (b) A certified copy of the court order that gives the guardian or conservator authority over the protected person’s digital property.

711.08(3)(c) (c) If requested by the custodian, any of the following:

711.08(3)(c)1. 1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the account of the protected person.

711.08(3)(c)2. 2. Evidence linking the account to the protected person.

711.08(4) (4) A guardian or conservator with general authority to manage a protected person’s assets may request a custodian of the protected person’s digital property to suspend or terminate an account of the protected person for good cause. A request made under this subsection shall be accompanied by a certified copy of the court order granting the guardian or conservator general authority to manage the protected person’s assets.

711.08 History History: 2015 a. 300.

711.09 711.09 Choice of methods for disclosing digital property; custodian.

711.09(1) (1) When disclosing digital property of a user under this chapter, the custodian may in its sole discretion provide a fiduciary or designated recipient with any of the following:

711.09(1)(a) (a) Full access to the user’s account.

711.09(1)(b) (b) Partial access to the user’s account that is sufficient to perform the tasks with which the fiduciary or designated recipient is charged.

711.09(1)(c) (c) A copy in a record of any digital property that the user could have accessed if the user were alive, had full capacity, and had full access to the account on the date on which the custodian received the request for disclosure.

711.09(2) (2) A custodian may assess a reasonable administrative charge to a fiduciary or designated recipient for the cost of disclosing digital property under this chapter.

711.09(3) (3) A custodian is not required to disclose under this chapter digital property deleted by the user.

711.09(4) (4) If a user directs or a fiduciary or designated recipient requests a custodian to disclose under this chapter some, but not all, of the user’s digital property, the custodian is not required to disclose the digital property if segregation of the digital property would impose an undue burden on the custodian. If the custodian refuses to disclose digital property because the custodian believes the segregation of the digital property imposes an undue burden, the custodian or fiduciary may seek an order from the court to disclose any of the following:

711.09(4)(a) (a) To the fiduciary or designated recipient, a subset of the user’s digital property that is limited by date.

711.09(4)(b) (b) To the fiduciary or designated recipient, all of the user’s digital property.

711.09(4)(c) (c) None of the user’s digital property.

711.09(4)(d) (d) To the court for review in camera, all of the user’s digital property.

711.09 History History: 2015 a. 300.

711.10 711.10 Custodian compliance and immunity.

711.10(1) (1) Not later than 60 days after receipt of the information required under ss. 711.05 to 711.08 or 711.12 (7) or an online tool, a custodian shall comply with a request under this chapter from a fiduciary or designated recipient to disclose digital property or terminate an account. If the custodian fails to comply, the fiduciary or designated recipient may apply to the court for an order directing the custodian to comply with the request.

711.10(2) (2) A court shall include in an order directing a custodian to comply with a request made under this chapter a finding that compliance with the request does not violate 18 USC 2702.

711.10(3) (3) A custodian may notify the user that a request for disclosure of digital property or to terminate an account was made under this chapter.

711.10(4) (4) A custodian may deny a request under this chapter from a fiduciary or designated recipient for disclosure of digital property or to terminate an account if the custodian is aware of any lawful access to the account after the receipt of the fiduciary’s request.

711.10(5) (5) This chapter does not limit a custodian’s ability to obtain or to require a fiduciary or designated recipient requesting disclosure or termination under this chapter to obtain a court order that does all of the following:

711.10(5)(a) (a) Specifies that an account belongs to the protected person or principal.

711.10(5)(b) (b) Specifies that there is sufficient consent from the protected person or principal to support the requested disclosure.

711.10(5)(c) (c) Contains any findings required by law other than this chapter.