The Laws Concerning Your Digital Legacy Are Evolving…
Federal law is silent on the question of access to digital accounts after death, outside of a few general restrictions set forth in federal Electronic Communications Privacy Act (ECPA) that may apply. In absence of clear regulations, companies are playing it safe by defaulting to denying access or establishing rules in their Terms of Service. This doesn’t sit right with many who want or need access to accounts of deceased loved ones, in order to wrap up financial matters or to get sentimental files. One resolution might come from an ongoing legislative battle at the state level. Competing bills have been introduced with different philosophies on how to manage digital assets. Here are the two models with the most traction so far:
The Uniform Fiduciary Access To Digital Assets Act, which raises privacy concerns. One proposal, written and promoted by the Uniform Law Commission, broadly supports allowing access to digital accounts by fiduciaries such as estate executors. The philosophy guiding the approach of the Uniform Fiduciary Access To Digital Assets Act (UFADAA) is that digital assets are not different from physical assets, and it relies on the principles of fiduciary duty to ensure that no harm results from granting access to accounts. The Center for Democracy & Technology joined several other advocacy organizations in expressing opposition to this model. In a letter the Center wrote to lawmakers they expressed their concerns that the access granted under this bill is too broad and raises serious privacy concerns.
NetChoice has created a better proposal. NetChoice, a trade association that represents many technology companies including Facebook and Google, released an alternative proposal titled the Privacy Expectation Afterlife and Choices Act (PEAC). This model requires companies to disclose contents only when a court finds that the user is deceased, and that the account in question has been clearly linked to the deceased, among other restrictions. Read the model bill here .
Wait, what does federal law say again? The federal Electronic Communications Privacy Act (ECPA) governs which types of information cloud service providers like Google and Yahoo! can disclose and under what circumstances — but it doesn’t provide specific direction for access after death. ECPA permits providers to voluntarily disclose non-content to anyone other than a governmental entity, but it bars providers from voluntarily disclosing content to anyone except in limited circumstances. Those circumstances are either to an “agent” of an addressee or intended recipient, or with the consent of any of those individuals. If an individual has given consent in a will, this solves the problem, and the provider can give access without worrying about federal law. Without that designation, companies are inclined to point to their terms of service to decide when and how to provide access to accounts – but this is often decided on a case-by-case basis, which can feel arbitrary to users.
Thinking about your digital assets and how you want to handle them is an ever more important consideration in estate planning. While access isn’t normally part of the official documents, listing important on-line accounts, who you would like to access them and how you would like them managed will guide your friends and family to do as you wish.
We look forward to continuing the conversation. I’ll be sharing more on managing your digital assets and estate planning in the months to come. I look forward to hearing your thoughts and ideas. Please contact me at [email protected]