2023 Colorado Revised Statutes › Title 15 - PROBATE, TRUSTS, AND FIDUCIARIES (§§ 15-1-101 — 15-24-403) › FIDUCIARY (§§ 15-1-101 — 15-1.5-122) › Article 1 - FIDUCIARY (§§ 15-1-101 — 15-1-1518) › Part 15 - REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT (§§ 15-1-1501 — 15-1-1518) › Section 15-1-1512 - Disclosure of contents of electronic communications held in trust when trustee not original user

(1)
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:
(a)
A written request for disclosure in physical or electronic form;
(b)
A certified copy of the trust instrument or a registration of the trust under part 2 of article
5
of this title 15 that includes consent to disclosure of the content of electronic communications to the trustee;
(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; and
(d)
If requested by the custodian:
(I)
A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust's account; or
(II)
Evidence linking the account to the trust.
Amended by 2018 Ch. 169, § 6, eff. 1/1/2019.
Added by 2016 Ch. 71, § 1, eff. 8/10/2016.
L. 2016: Entire part added, (SB 16-088), ch. 71, p. 186, § 1, effective August 10. L. 2018: (1)(b) amended, (SB 18-180), ch. 169, p. 1192, § 6, effective 1/1/2019.
OFFICIAL COMMENT
For accounts that are transferred into a trust by the settlor or in another manner, a trustee is not the original user of the account, and the trustee's authority is qualified. Thus, Section 1512, governing disclosure of content of electronic communications from those accounts, requires consent.
Section 1512 addresses situations involving an inter vivos transfer of a digital asset into a trust, a transfer into a testamentary trust, or a transfer via a pourover will or other governing instrument of a digital asset into a trust. In those situations, a trustee becomes a successor user when the settlor transfers a digital asset into the trust. There should be no question that the trustee with legal title to the digital asset was authorized by the settlor to access the digital assets so transferred, including both the catalogue and content of an electronic communication, and this provides "lawful consent" to allow disclosure of the content of an electronic communication from an electronic-communication service or a remote-computing service pursuant to applicable law. See the Comments concerning the definitions of the "content of an electronic communication" after Section 1502. Nonetheless, Sections 1512 and 1513 distinguish between the catalogue and content of an electronic communication in case there are any questions about whether the form in which property transferred into a trust is held constitutes lawful consent. Both authorization and lawful consent are important because
18 U.S.C. Section 2701
deals with intentional access without authorization and because
18 U.S.C. Section 2702
allows a service provider to disclose with lawful consent.
The underlying trust documents and default trust law will supply the allocation of responsibilities between and among trustees. When requesting access, the trustee must write or email the custodian (see comments to Section 1507). The trustee must also give the custodian an original or copy of the trust that includes consent to disclosure of the content of electronic communications to the trustee and a certification by the trustee, under penalty of perjury, that the trust exists and that the trustee is a currently acting trustee of the trust. Also, if requested by the custodian, the trustee must provide a unique subscriber or account identifier assigned by the custodian to identify the trust's account, or some evidence linking the account to the trust.