Virtual Assets and Real Advice - Clients Need Candid Advice Regarding their Digital Assets (5 of 10)
Virtual Assets and Real Advice
Clients Need Candid Advice Regarding their Digital Assets
(Part 5 of 10 part series)
C. Federal Privacy Laws
There are no federal laws explicitly recognizing an owner’s right to control the disposition of digital assets at death or incapacity.[i] There are, however, several federal laws aimed at protecting a person’s privacy that can act as a constraint on an owner’s ability to legally control the disposition of online digital assets at death or incapacity.[ii] A full discussion of these laws is beyond the scope of this Article, but the Stored Communications Act (“SCA”) applies directly to anyone wanting access to certain online digital assets.[iii] Specifically, the SCA prohibits the unauthorized access to an electronically stored communication to anyone that is not a party to that communication.[iv] The statute also prohibits online service providers from divulging the contents of an electronically stored communication without the “lawful consent of the originator or an addressee or intended recipient of such communication.”[v] If a personal representative is not a party to the communication, he must show that he was previously authorized by the owner to obtain access.[vi] Unfortunately, “authorization” and “lawful consent” are not defined in the statute.[vii] Thus, a third-party representative has no clear path to gain access to these digital assets.
III. Inadequacy of Developing State Law
A. Developing State Law
While contract law favoring these online terms of service agreements has been fairly well-developed, property law has not kept up in protecting the rights of users to dispose of their online digital assets.[xiv] A handful of states have considered legislation on the subject, but only eight have enacted laws meant to expand the powers of legal representatives over a person’s digital assets.[xv] The laws that have been passed vary greatly in scope are too new to know how they will impact the current legal landscape.[xvi]
The first three laws, enacted by California in 2000, Connecticut in 2005, and Rhode Island in 2007, only cover a small subset of digital assets – e-mail accounts.[xvii] California’s law is very limited in scope and does not directly address the disposition of these assets at death or incapacity.[xviii] Instead, the law imposes certain notice requirements that a provider must meet before terminating an e-mail account.[xix] This presents two problems in an estate planning context: first, such a requirement may be meaningless if notice is sent to an e-mail accessible only to a deceased or incapacitated person; second, even if the representative receives timely notice, the law does not require the provider to recognize the representative’s authority to gain access.[xx] On the other hand, the statutes passed in Connecticut and Rhode Island require that providers give executors and administrators access to the deceased person’s e-mail upon written request, “accompanied by a copy of the death certificate and a certified copy of the certificate of appointment as executor or administrator, or by court order.”[xxi] While these latter two laws deal directly with dispositional rights, they do not cover any other type of digital asset.[xxii]
(Rest of article continued in series)
[i] See Beyer, supra n. 10, at 148.
[ii] Molly Wilkens, Privacy and Security During Life, Access After Death: Are They Mutually Exclusive?, 62 Hastings L.J. 1037 (2011).
[iii] Id. at 1052. See also Stored Communications Act of 1986, 18 U.S.C. § 2701 et seq.
[iv] See Wilkens, supra n. 74, at 1053.
[v] See Stored Communications Act, supra n. 75.
[viii] See Wilkens, supra n. 74, at 1054.
[xi] Michael Wixom, Yahoo Will Give Family Slain Marine’s E-mail Account, USA Today (Apr. 21, 2005), http://usatoday30.usatoday.com/tech/news/2005-04-21-marine-e-mail_x.htm.
[xiii] Jonathan J. Darrow & Gerald R. Ferrera, Who Owns A Decedent's E-Mails: Inheritable Probate Assets or Property of the Network?, 10 N.Y.U. J. Legis. & Pub. Pol'y 281, 282 (2007).
[xiv] Gerry W. Beyer & Naomi Cahn, When You Pass On, Don’t Leave Your Passwords Behind, 26 Prob. & Prop. 40, 41 (2012).
[xv] See Beyer, supra n. 10, at 142.
[xvii] Id. at 143.
[xviii] Cal. Bus. & Prof. Code § 17538.35 (West 2010).
[xx] See Darrow, supra n. 85, at 296-97.
[xxi] Conn. Gen. Stat. Ann. § 45a-334a (West); R.I. Gen. Laws Ann. § 33-27 (West).
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