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

(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:

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

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

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

1. A certified copy of the letters of appointment of the personal representative or special administrator.

2. A certified copy of a summary proceeding order under s. 867.01 or 867.02.

3. An original or copy of an affidavit under s. 867.03.

4. An original or copy of an application under s. 867.046.

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

1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account.

2. Evidence linking the account to the user.

3. An affidavit stating that disclosure of the user's digital property is reasonably necessary for administration of the estate.

4. A court order that includes any of the following findings:

a. The user had a specific account with the custodian, identifiable by the information specified in subd. 1.

b. The disclosure of the user's digital property is reasonably necessary for administration of the estate.

(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:

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

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

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

1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account.

2. Evidence linking the account to the user.

3. A court order that includes any of the following findings:

a. The user had a specific account with the custodian that is identifiable by the information specified in subd. 1.

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.

c. Unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications.

d. The disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.

History: 2015 a. 300; 2017 a. 334.