Carrie Fisher passed away on December 27, 2016, at the Ronald Reagan UCLA Medical Center in Los Angeles, after suffering a massive heart attack. Fisher, a famous actress best known for her role as Princess Leia in the Star Wars franchise, maintained a number of quite active social media accounts, primarily a twitter account with 1.25 million followers and a Facebook account with 523,845 Likes. Since her passing, no activity has been registered on these accounts as of the time of this posting.
The issue of handling one’s digital assets following death has become more prominent, as technology and social media plays a more central role in our lives. Digital assets, such as social media accounts, websites and emails, now have an economic value much like tangible assets. One can only imagine the potential of Carrie Fisher’s twitter account, with its 1.25 million followers, which now sits idle.
The Uniform Fiduciary Access to Digital Assets Act (UFADAA), approved by the Uniform Law Commission on July 16, 2014, attempted to tackle this very issue. The act aims to extend a fiduciary’s existing control over the decedent’s tangible assets to include his or her digital assets. The UFADAA allows fiduciaries to access electronic records of the deceased, the same way current probate, trust and banking laws enable fiduciaries to access tangible banks accounts and records, subject to a will, trust or other records. Although some raised concerns regarding the privacy implications of the act, arguing it effectively voids user privacy choices following a consumer’s death, the UFADAA was nonetheless submitted for the consideration of state legislatures. The act was revised the following year in 2015 to address the privacy concerns raised by critics and received the endorsement of tech giants such as Facebook and Google, which store much of the data covered by the act. Currently, 23 states have enacted some version of the Revised UFADAA. California, in September 2016, became the most recent state to join the fold. An additional nine states have introduced a bill to adopt the act as state law.
The Goals of the Act
Other federal and state laws regarding probate, property or agency did not account for digital property since social media, blogs, emails and other forms of digital assets became prevalent only after their enactment. Had the UFADAA not been enacted as state law in so many states, the terms of service and privacy policies would have governed the access of surviving family members to social media and email accounts. Since these terms usually expire with the passing of the user and are not transferable, one’s digital assets would have remained out of reach for one’s successors. Hence, descendants would not have been able to gain control over valuable digital assets such as frequent flyer miles, manage the deceased contacts list to notify friends of his or her death and of service arrangements or to gain access to cherished memories, such as family photos stored on the cloud.
In the prefatory note of its 2014 version, the UFADAA makes it clear that it simply intends to remove barriers to a fiduciary’s access to electronic records while leaving other laws, such as probate, trust, banking, investment securities and agency law, unaffected. It is aimed at updating state fiduciary law for the Internet age. Under the UFADAA, a fiduciary appointed to manage the property of another person, such as an executor, trustee, personal representative or agent under a power of attorney, will bear the legal authority to manage and distribute both the decedent’s tangible assets and his or her digital assets, all in accordance with the decedent’s estate plan. Without such authority, any access to digital assets may be deemed unauthorized under federal law (the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and the Stored Communications Act section of the Electronic Communications Privacy Act, 18 U.S.C. § 2701).
Note that due to the aforementioned privacy concerns, the fiduciary still requires the decedent’s prior affirmative consent in a will, trust, power of attorney or other record, to access and disclose private electronic communications and personal photos. The act strives to respect the privacy of the original owner of the digital assets and fulfill his intent with respect to such assets.
What Kinds of Digital Assets Are There?
Section 2(10) of the Revised UFADAA defined “digital asset” broadly to mean any record that is electronic in which an individual has a right or interest. This includes, without limitation, social media accounts; blogs; emails, computer files, information stored on digital devices, photographs and documents uploaded to the web, digital music, web sites and domain names, frequent flyer miles, virtual currency and digital entitlements associated with online games and services.
Online Tools for Directions regarding Disclosure of Digital Assets
The Revised UFADAA clarified that general assent to the terms of service cannot be interpreted as consent for disclosure or non-disclosure of information to fiduciaries and that any provision limiting or granting fiduciaries access are void (based on the assumption that no one really reads the terms of service). However, section 4 of the act provides for users the option to grant affirmative consent through an online tool, i.e., an electronic service provided by the online service provider that allows the user, in an agreement distinct from the terms of service, to provide directions for disclosure or non-disclosure of digital assets to a third person. The section further provides that if the online tool allows the user to modify or delete a direction at all times, such disclosures will supersede any contrary direction by the user in a will, trust, power of attorney or other record. This is a powerful tool for users to prevent the unwanted disclosure of the content of private electronic communications.
This provision is known to be extremely important to giant tech companies based in Silicon Valley, California such as Facebook, Yahoo and Google, which hold immense amounts of user data. The recent passing of AB 691 (Revised Uniform Fiduciary Access to Digital Assets Act) by California’s state legislature, which included a similar provision in section 873(a) (allowing for online tools to express decedent’s intent and guidance with respect to disclosure over directions made by will or other record), enjoyed strong support by these companies. This is due to the fact that the provision offers strong liability protection, in addition to protecting user privacy.
Currently, Facebook offers an online tool that enables users to dictate what will happen their accounts following death and designate a “legacy contact” to look after their accounts. Google offers a similar solution through its “Inactive Account Manager” tool. Other services such as Linkedin, Twitter, Yahoo and Instagram only allow for family members to contact the service following the deceased person’s death and ask for access to or deletion of the account. They do not permit users to submit instructions in advance of death with respect to their wishes regarding access in an unfortunate event; therefore, they risk exposure to privacy violations (granted the deceased is not available to assert such claim).
Access to and distribution of digital assets post-mortem has become an important consideration in estate planning. This issue has also emerged in other fields of law. A rising new trend in prenuptial agreements is to address not only tangible property but also digital assets that possess potential economic value. People are not just planning for an untimely demise but also for an untimely divorce.
The Revised UFADAA did not try to break new legal ground but simply extended the laws governing fiduciaries to fit our digital age. The number of states that have adopted it will soon pass the halfway mark. In those states, users will enjoy control over their digital assets in the same manner as they have over their tangible property. With social media accounts having millions of followers and thousands of photos and videos that generate massive amounts of revenue, it seems only fitting that people should be able to consider the post mortem disposition of their online presence.