Do you have a plan for your digital life after your life is complete? Want your children rooting around in your social media accounts? Your spouse? How about your bank accounts? E-mails? If you can’t log into your bank account after a health emergency should someone access your account to pay bills? Who would you trust with your internet passwords?
Current law on the fate of a person’s digital assets when they are incapacitated or deceased is not uniform. Forty-two states have passed laws related to digital assets. State Senator Tom Killion (R), is the prime sponsor of Pennsylvania Senate Bill 827, (bill text here) the “Revised Uniform Fiduciary Access to Digital Assets Act” (the Act). Killian’s office reports there is no known opposition to the bill; it has gotten unanimous approval from the Senate Judiciary Committee and is currently on the Senate Calendar for second consideration, possibly within the next two weeks.
Drafted by the National Conference of Commissioners on Uniform State Laws, the Act was approved and recommended for enactment in all states in 2015. The widespread adoption of the legislation would provide consistency and clarity for individuals and internet service providers. Otherwise, the fate of your internet content may depend on the account provider’s policy. Each provider has their own policy. Some accounts and their contents could be lost forever. CBS provides one family’s harrowing story in this video.
Following traditions of trusts and estates law, the Act strikes a balance between the privacy rights of an account holder and a fiduciary’s ability to administer an estate. It outlines procedures for an account owner to name a fiduciary for managing digital assets and provides legal authority to the custodian (i.e. Google, Twitter, Facebook, financial institutions) to provide account owner information to the fiduciary.
The right of an internet account holder to determine who may access their digital information and under what conditions is respected within the Act. An account holder may designate the limits of a fiduciary’s access to online data, whether it is comprehensive or limited. It requires a separate, explicit grant of authority within a power of attorney document for a fiduciary named in a power of attorney to access digital assets.
The Act uses a three-tiered approach to decide priority among conflicting fiduciary designations. If an account holder designates a fiduciary through a provider supplied procedure within the account, that designation over rides any contradictory directive contained in a will or power of attorney. If an account holder has not designated a fiduciary with the account provider, or the account provider doesn’t have a procedure, fiduciaries named in a will or power of attorney have authority to access account information. An account holder designation by a will or an online tool would prevail over anything embedded in a generic terms-of-service agreement that doesn’t require separate action by the account holder.
The provisions contained within the Act are complex. Consultation with an attorney familiar with the current law in your state is advisable.
Considering the fate of your on-line data may seem overwhelming. The volume of accounts, passwords, and personal information electronically gathered and stored during the span of a modern life is growing. The thought of identifying accounts, listing passwords and determining who, if anyone you would welcome into your digital life will almost certainly give you pause. The alternative could be worse.