Digital Files After Death, What Happens to Your Digital Legacy?

Delaware Enacts Fiduciary Access to Digital Assets Act

On August 12, 2014, Delaware’s governor signed into law the Delaware Fiduciary Access to Digital Assets Act, which is based on an earlier of the recently-approved Uniform Fiduciary Access to Digital Asset Act. Delaware’s new law takes effect January 1, 2015, and it grants access and authorization for digital to personal representatives, guardians, agents under a durable personal power of attorney, and trustees (and an adviser with authority to direct the trustees).

So far, Delaware’s Fiduciary Access to Digital Assets Act is the most comprehensive law of its type that has been enacted. Many other states are now considering the recently-approvedUniform Fiduciary Access to Digital Asset Act, which vests four types of fiduciaries with the authority to access, control, or copy , while respecting the privacy and intent of the account holder. Other states have previously enacted more limited laws on fiduciary access to , including:

  1. Connecticut Statutes § 45a-334a, signed into law on June 24, 2005, gives the personal representative of a deceased person’s estate the powers to access or copy the contents of the person’s e-mail accounts. Unfortunately, this law falls short of the current scope of online accounts and digital property, and it only applies to personal representatives.
  2. Indiana Code § 29-1-13-1.1, approved March 30, 2007, allows the personal representative to access or copy any of the decedent’s documents or information stored electronically by a “custodian.” It also requires the custodian to retain a deceased person’s electronic information for two years after receiving a request for access or copies. Unfortunately, the law only applies to personal representatives.
  3. Rhode Island General Laws Chapter 33-27, which became law on July 2, 2007, gives the personal representative of a deceased person’s estate the powers to access or copy the contents of the person’s e-mail accounts. Unfortunately, this law falls short of the current scope of online accounts and digital property, and it only applies to personal representatives.
  4. Oklahoma Statutes § 58-269, signed into law April 29, 2010, gives the personal representative of a deceased person’s estate the powers “to take control of, conduct, continue, or terminate” a deceased person’s e-mail account, social networking account, microblogging account, or short messaging service Web site. Unfortunately, this law falls short of the current scope of online accounts and digital property, and it only applies to personal representatives.
  5. Idaho Statutes § 15-3-715(28), signed into law March 16, 2011, gives the personal representative of a deceased person’s estate the powers “to take control of, conduct, continue, or terminate” a deceased person’s e-mail account, social networking account, microblogging account, or short messaging service Web site. Idaho Statutes § 15-5-424(3)(z) also grants similar powers to a person’s conservator. Unfortunately, these laws fall short of the current scope of online accounts and digital property, and they only apply to personal representatives and conservators.
  6. Virginia Code § 64.2–110, signed into law on March 13, 2013, gives the personal representative of a deceased minor’s estate (but not a deceased adult’s estate!) the power to assume the minor’s Terms of Service agreement for an online account “for purposes of consenting to and obtaining the disclosure of the contents of the minor’s communications and subscriber records pursuant to 18 U.S.C. § 2702.” Unfortunately, this law only applies to online accounts of deceased minors.
  7. Nevada Revised Statutes § 143.188, signed into law on June 1, 2013, gives the personal representative of a deceased person’s estate the power to direct the termination of any online account or similar electronic or of the decedent. However, this law does not address powers to access these accounts or copy the contents, and it only applies to personal representatives.
  8. Louisiana Code of Civil Procedure Article 3191, signed into law on June 19, 2014, gives the succession representative of a deceased person’s estate the power “to take control of, handle, conduct, continue, distribute, or terminate any digital account of the decedent,” unless the decedent’s will specifies otherwise. It requires a provider to provide access to the account within thirty days after receiving a copy of documents showing the representative’s authority, to the extent permitted by federal law. And, this law states that it supersedes any contrary provision in a Terms of Service contract for the decedent’s digital accounts. The term “digital account” includes social networking accounts, blogs, microblogs, short messaging accounts, email accounts, financial accounts, or any similar electronic services or records.
Eleanore

Eleanore

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