On July 16, 2014, the Uniform Fiduciary Access to Digital Assets Act (UFADAA) was passed by the Uniform Law Commission. My colleague Gene Hennig and I originally proposed this uniform law in May of 2011, and I’m very happy with the end result. The final version of UFADAA that was passed is now available here (excluding the comments, which are available here in the previous draft), and the Committee on Style will be reviewing and editing this version before UFADAA is officially final.
The purpose of UFADAA is to vest fiduciaries with the authority to access, control, or copy digital assets, while respecting the privacy and intent of the account holder. This uniform law address four types of fiduciaries: (1) personal representatives (also known as executors) of a deceased person’s estate; (2) conservators (also known as guardians) for a living person; (3) agents acting under a power of attorney; and (4) trustees of a trust.
Fiduciaries play an essential role in our economy, acting on behalf of living, incapacitated, and deceased individuals. Fiduciaries generally have the same power over assets that an absolute owner would have. In general, UFADAA confirms that a person’s fiduciary stands in the shoes of the person, even in the digital world. This is important because digital assets may have additional obstacles to overcome that do not apply to traditional types of property. These additional obstacles in the digital world include: (1) passwords; (2) encryption; (3) criminal laws regarding unauthorized access to computers (including the Computer Fraud and Abuse Act); and (4) data privacy laws (including the Stored Communications Act, also known as the Electronic Communications Privacy Act). UFADAA helps fiduciaries address obstacles #1, #3, and #4, but it doesn’t solve obstacle #2—encryption. As I’ve explained before, strong encryption can make it practically impossible for a fiduciary to access a person’s data if you don’t know the password.
Now that the Uniform Law Commission has passed UFADAA, the Committee on Style will review and edit the final text of the uniform act, as amended during the reading and comment period of UFADAA that occurred on Monday, July 14, 2014. That review process might be completed by October or November of 2014, then the final version of UFADAA will published and ready for state legislatures to begin considering local enactment.
The Uniform Fiduciary Access to Digital Assets Act would not have been possible without the leadership of Suzy Walsh, who chaired the Drafting Committee for this uniform act, and Professor Naomi Cahn, who was the reporter for this uniform act. The final version is the result of an active collaboration by Uniform Law Commissioners who were members of the Drafting Committee and over 130 observers who participated in the process, including representatives from The American College of Trust and Estate Counsel, the American Bar Association, the National Academy of Elder Law Attorneys, the American Bankers Association, Internet service providers and several of their industry groups, and consumer rights and privacy groups.
The final version of UFADAA provides the access to digital assets that fiduciaries need to carry out their duties, while respecting the privacy and intent of the account holder. Thank you to everyone who was involved in this process!