Colo. Rev. Stat. § 15-1-1509

Current through 11/5/2024 election

Section 15-1-1509 - Disclosure of content of electronic communications of principal

(1) 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:

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

(b) An original or copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal;

(c) A certification by the agent, under penalty of perjury, that the power of attorney is in effect; 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 principal's account; or

(II) Evidence linking the account to the principal.

C.R.S. § 15-1-1509

Added by 2016 Ch. 71, § 1, eff. 8/10/2016.

L. 2016: Entire part added, (SB 16-088), ch. 71, p. 185, § 1, effective August 10.

OFFICIAL COMMENT

An agent has access to the content of electronic communications only when the power of attorney explicitly grants access. Section 1510 concerns disclosure of other digital assets of the principal.

When a power of attorney contains the consent of the principal, ECPA does not prevent the agent from exercising authority over the content of an electronic communication. See the Comments to Section 1507. There should be no question that an explicit delegation of authority in a power of attorney constitutes authorization from the user to access digital assets and 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. Both authorization and lawful consent are important because 18 U.S.C. Section 2701 deals with intentional access without authorization and 18 U.S.C. Section 2702 allows a service provider to disclose with lawful consent. Federal courts have not yet interpreted how ECPA affects a fiduciary's efforts to access the content of an electronic communication. E.g., In re Facebook, Inc., 923 F. Supp. 2d 1204 (N.D. Cal. 2012).

When requesting access, the agent must write or email the custodian (see the comments in Section 1507). The agent must also give the custodian an original or copy of the power of attorney expressly granting the agent authority over the contents of electronic communications of the principal to the agent and a certification by the agent, under penalty of perjury, that the power of attorney is in effect. In addition, if requested by the custodian, the agent must provide a unique subscriber or account identifier assigned by the custodian to identify the principal's account or other evidence linking the account to the principal.