The Uniform Law Commission is a non-profit organization that drafts “model” or “uniform” laws that can be adopted by state legislatures. Individual legislatures can then adopt the act as is, or can tweak it as they see fit. I have previously written about the Uniform Fiduciary Access to Digital Assets Act. The American Bar Association appointed me to be one of its representatives to the committee, and I participated in the Act’s drafting.
The purpose of the Act is to allow fiduciaries (personal representatives, trustees, agents under a power of attorney, and guardians) to access the “digital assets” of a ward, beneficiary, principal, or decedent. A digital asset is an electronic record in which an individual has a right or interest. They can include the content of email accounts, websites, Facebook and other social media, digital photos, online databases, and even paperless financial accounts.
The original act was issued last year to great fanfare. The problem with the original act is that it was strongly opposed by the internet industry – Google, Facebook, Yahoo, etc. They lobbied against it, and no state enacted it. The industry believed that the original Act would force them to violate the federal Electronic Communications Privacy Act (ECPA), and also betray the privacy of their users. Federal law governs the disclosure of the content of certain communications.
One of the industry’s concerns was that there would be a conflict between an individual’s estate planning documents, and the terms of service agreements by the provider. The Revised Act introduces the concept of an “Online Tool” that can direct the custodian when and whether to disclose assets to a fiduciary. A user may use an online tool to direct the custodian to disclose or not to disclose some or all of the user’s digital assets, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or other record
The online tool will be separate than the terms of service. The provisions regarding the online tool provide that “A user may use an online tool to direct the custodian to disclose or not to disclose some or all of the user’s digital assets, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or other record. ” So the “online tool” will override both the terms of service and the person’s estate planning documents.
If the user has not used an online tool, or if the provider does not provide one, then the user may allow or prohibit fiduciary access in their estate planning documents.
There were other changes as well to the Act that appeased the internet providers – mostly concerning how and when a provider must disclose the content of communications. Under the revised act, a personal representative’s access to the content of communication is not permitted unless the decedent consented to the disclosure. With regards to a Guardianship, the custodian is not required to disclose contents without the express consent of the Ward (before incapacity, obviously).
Digital assets that do not contain contents of communications are much more easily accessed by fiduciaries.