When someone dies, what becomes of their user accounts and profile? Ars …
Delaware has become the first state in the US to enact a law that ensures families’ rights to access the digital assets of loved ones during incapacitation or after death.
Last week, Gov. Jack Markell signed House Bill (HB) 345, “Fiduciary Access to Digital Assets and Digital Accounts Act,” which gives heirs and executors the same authority to take legal control of a digital account or device, just as they would take control of a physical asset or document.
Earlier this year, the Uniform Law Commission, a non-profit group that lobbies to enact model legislations across all jurisdictions in the United States, adopted its Uniform Fiduciary Access to Digital Assets Act (UFADAA). Delaware is the first state to take the UFADAA and turn it into a bona fide law.
While some states, including Idaho and Nevada, have some existing provisions pertaining to limited digital assets for heirs, they are not as broad as the new Delaware law. For now, the state’s version of UFADAA only applies to residents of Delaware, one of the smallest states by population and land area. If other states don’t follow suit soon, people creating family trusts could conceivably use this Delaware law to their advantage, even without residing in Delaware. However, even though many tech companies (including Twitter, Facebook, and Google) are incorporated there, they will not be affected by the new law.
“If a California resident dies and his will is governed by California law, the representative of his estate would not have access to his Twitter account under HB 345,” Kelly Bachman, a spokeswoman for the Delaware governor’s office, said by e-mail.
“But if a person dies and his will is governed by Delaware law, the representative of that person’s estate would have access to the decedent’s Twitter account under HB 345. So the main question in determining whether HB 345 applies is not where the company having the digital account (i.e., Twitter) is incorporated or even where the person holding the digital account resides.”
While an important first step, Suzanne Walsh, an attorney with Cummings and Lockwood in Connecticut and chair of the UFADAA committee, told Ars that she is waiting for the most populous state to adopt its own version, which could also have an important influence on other states.
“I think California is the most important,” she told Ars. “It’s even more important that we have uniformity and uniform enactment.”
“You will not share your password”
Specifically, the new Delaware law states:
A fiduciary with authority over digital assets or digital accounts of an account holder under this chapter shall have the same access as the account holder, and is deemed to (i) have the lawful consent of the account holder and (ii) be an authorized user under all applicable state and federal law and regulations and any end user license agreement.
You will not share your password (or in the case of developers, your secret key), let anyone else access your account, or do anything else that might jeopardize the security of your account.
You will not transfer your account (including any Page or application you administer) to anyone without first getting our written permission.
In 2004, Yahoo famously denied access to a US marine’s e-mail account to his family after the marine was killed in action in Iraq.
Neither Twitter, Facebook, nor Google immediately responded to Ars’ request for comment.
“This problem is an example of something we see all the time in our high-tech age—our laws simply haven’t kept up with advancements in technology,” said Daryl Scott, in a statement last week. Scott is a member of the Delaware House of Representatives and the lead author of the bill. “By signing this bill into law, we’re helping to protect the rights and interests of the average person in the face of a rapidly evolving digital world.”
UPDATE Tuesday 2:04pm CT: Jim Halpert, an attorney with DLA Piper, and the director of the State Privacy and Security Coalition, an umbrella group that represents Google, Yahoo, Facebook and other firms, said that he opposes the new Delaware law.
“This law takes no account of minimizing intrusions into the privacy of third parties who communicated with the deceased,” he said. “This would include highly confidential communications to decedents from third parties who are still alive—patients of deceased doctors, psychiatrists, and clergy, for example—who would be very surprised that an executor is reviewing the communications. The law may well create a lot of confusion and false expectations because, as the law itself acknowledges, federal law may prohibit disclosing contents of communications.”
When asked why an inherited paper letter should be treated differently under the law, he said that e-mail and other digital messaging has replaced paper correspondence.
“The volume of email is far larger and people usually consider much more carefully what they write in a letter,” he said.