Digital assets have come to permeate our lives. They currently include items such as emails and email accounts, social network content and accounts, electronic documents, digital photographs, digital videos, database file sharing accounts, financial accounts, health care records and accounts, domain registrations, tax preparation service accounts, online store accounts and affiliate programs, and other online accounts.
As pointed out in our February Legal Update, individuals should consider providing for the disposition of digital assets, to the extent permitted by law, in their estate plans. Service providers such as Facebook and Yahoo have proved reluctant to relinquish control over content (i.e., the “digital assets”) to anyone other than the deceased, impairing the ability of fiduciaries to carry out the wishes of the deceased.
Illinois Senate Bill 1376, currently before the General Assembly, is designed to overcome these obstacles. The proposed Uniform Fiduciary Access to Digital Assets Act (“UFADAA”) would make it easier for Illinois fiduciaries to access the decedent’s digital assets. Some observers have expressed concerns about abuses under UFADAA, such as over-reaching family members gaining access to sensitive information of the decedent. As proposed, however, the UFADAA would not provide family members unfettered access, but instead only provide fiduciaries (e.g., executors and trustees subject to the duties of confidentiality, care, and loyalty) access to the extent permitted under federal law.
Still unresolved is how UFADAA would intersect with the Stored Communications Act under federal law, 18 U.S.C. §2701, et seq. (“SCA”), which prohibits Facebook and Yahoo from releasing stored data except under certain circumstances. Complicating matters, UFADAA would apply to a broad class of digital assets while the SCA is limited only to electronic communications. The SCA issue should be resolved over time. One solution, for example, proposed by the American College of Trust and Estate Council is for Congress to legislate a fiduciary exemption under the SCA.