Edit #2 3/11/2016: The governor signed the bill on March 10.
Edit 3/3/16: Although the headline says that the governor signed the bill, he hasn’t yet. It’s been presented to him and everyone expects him to sign it. Unfortunately, I can’t change the headline because of internet-nerdy permalink reasons. Come on Governor, please sign the bill so I don’t look silly.
After a few false starts and much wrangling, Florida has enacted the Fiduciary Access to Digital Assets Act. Instead of integrating the new law into the various provisions of the probate, trust, guardianship, and power of attorney codes, the legislature created a new section, chapter § 740. I have written about the problems of digital assets and the effort of enacting the Fiduciary Access to Digital Assets Act a few times before.
Under the law, a “digital asset” is an “electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record.” § 740.002(9). The law defines “online tool” as “an electronic service provided by a custodian which allows the user, in an agreement district from the terms-of-service agreement between the custodian and user, to prove directions for disclosure or nondisclosure of digital assets to a third person.” § 740.002(16). Examples of this are the Facebook “legacy contact” or Google’s “Inactive Account Manager.”
The purpose of the online tool is to allow users to choose for themselves whether to allow Google, Facebook, or other internet providers to disclose digital assets upon their death or incapacity. The user can use the online tool to directly opt-in or opt-out. If the user elects to use the online tool, then it “overrides a contrary direction in a will, trust, power of attorney, or other record.” In other words, it controls and is more important than your estate planning documents. If you told Google through the online tool do not let anyone access my account, that it does not matter what your will says.If a user has not used an online tool, or the provider does not have one, then the user is free to allow or prohibit access to their digital assets through their will, trusts, or other documents.
Making the Internet Providers Feel Better
The key distinction between the new act and past attempts, is that it gives much more discretion and protection to the Internet providers. Under the new act, an Internet provider may, in its sole discretion, decide how to grant access to
digital assets to fiduciaries. Section 740.005 provides that when disclosing the digital assets of a user, a custodian may, at its sole discretion:
- Grant a fiduciary full access,
- Grant partial access to the account so that the fiduciary may perform their duties, or
- Provide the fiduciary with a copy, in a record, of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity to access the account.
So under my interpretation, the internet provider can, if it so chooses, print out the information and send it on paper, instead of giving the fiduciary actual access to the account.
One important distinction between the enacted act and past attempts, is that there is a strict separation between the “content of electronic communications” and other digital assets. It was always the content of communications that worried the digital providers the most. This is because communications is two ways. If you are my friend and send me a personal information in an email about your boss, or your finances, or your health, or your kids, and if I die or become incapacitated, a third party could potentially have access to that information.
The statute also imposes upon fiduciaries duties that they already had under hundreds of years of common law. Section 740.05 provides that “the legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including (a) the duty of care, (b) the duty of loyalty, and (c) the duty of confidentiality. Ok, nothing new there. But I think it makes the internet providers feel better. There is also a provision under §740.06 regarding custodian compliance and immunity.
Hopefully, this act will resolve a lot of the issues regarding personal representatives, trustees, agents under a power of attorney, and court appointed guardians to access digital assets.