Tales from the (En)crypt(ed): What Happens to Your Online Account Information When You Die?

by DLA Piper
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Have you ever wondered what happens to your online account information when you die?  Well, in a few days, the Uniform Law Commission (ULC) will be considering this very issue – fiduciary access to digital assets – at its annual meeting in Boston, MA.

The ULC has been working on a draft uniform state law (“Fiduciary Access to Digital Assets Act”) with various stakeholders for over 7 months to find a solution that adequately balances varying interests, such as the need for a fiduciary to gain access to a decedent’s online account information to settle an estate, privacy rights of the decedent and third parties who communicated with the decedent, and limitations in copyright license agreements against transfers of licensed games, movies and music.  However, there is still much work to be done to ensure that the draft uniform state law fits with federal law, specifically the Electronic Communications Privacy Act (ECPA), which limits Internet companies’ ability to disclose the contents of communications.

ECPA contains several exceptions that allow disclosure of the contents of communications, including with “lawful consent of the originator or an addressee or intended recipient of [a] communication” or “to an agent of [an] addressee or intended recipient.”  However, whether those exceptions allow fiduciary access, absent a statement of intent in a will or in the terms of service of the account, is an entirely unsettled area of law.  Without addressing this issue head-on, the draft uniform state law could potentially create serious conflicts with federal law.

Facebook attempted to obtain a ruling on the question in In re Request for Order Requiring Facebook Inc. to Produce Documents and Things, C 12-80171 LHK (PSG) (N.D. Cal. Sept. 20, 2012), where it asked the court to issue an order establishing that the surviving family members of a decedent had authority to tender consent on behalf of the decedent so as to justify compelling production.  However, the court declined to rule on this issue stating that this would amount to an “impermissible advisory opinion,” and that “[u]nder the plain language of [ECPA], while consent may permit production by a provider, it may not require such a production.”

Six states – Oklahoma, Rhode Island, Connecticut, Idaho, Indiana and Virginia – have adopted laws on this issue.  The most recent, Virginia’s, which the authors helped to draft, provides parents the right to access the online account of a deceased child.  In 2013, at least 10 states considered legislation on this issue – bills that would provide personal representatives with the power to take control of, conduct, continue or terminate any accounts or message services of a deceased person that are considered digital assets.  Stakeholders testified at legislative hearings regarding the complexities of the issue.  After considering these complexities, all but one of these legislatures decided to delay action.

In an effort to get ahead of this issue, several social networks are competing to offer innovative options – like Facebook’s memorialization or Google’s Inactive Account Manager – that encourage accountholders to express preferences during their lifetimes or empower family members to preserve a relative’s social media account.

The ULC is unlikely to adopt a final uniform state law until next year, but this month’s annual meeting should provide early indications of whether the Commission is inclined to side with the trust and estates bar in affording fiduciaries unlimited access to online accounts, or whether it favors a proposal that the authors of this draft uniform state law put forward — affording fiduciaries access to online account information and other content, absent some specific indication of consent of the deceased accountholder.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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