Once again this year, the General Assembly seeks to enact a bill to permit fiduciaries access to digital assets. The earlier effort was based on the original Uniform Fiduciary Access to Digital Assets Act drafted in July 2014 (“UFADAA”). This initial effort sought to place the fiduciary in the shoes of the accountholder for all purposes. UFADAA was drafted with participation from Facebook, Google, Yahoo, Microsoft and others in the industry. Nevertheless, the industry objected to the approach taken in the Uniform Act, raising issues of privacy and concerns that sensitive or confidential information would be unwittingly released to third parties. The industry insisted that the accountholder give express consent to disclosure and rejected the notion of “constructive consent”. Accordingly, the industry lobbied against the enactment in various states and the UFADAA failed as a national effort at uniformity.
The uniform law commissioners regrouped and negotiated a compromise: the Revised Uniform Fiduciary Access to Digital Assets Act (2015) (“RUFADAA”) which is now pending before the General Assembly. It is likely to pass.
Under the revised act, the user may consent to disclosure of protected electronic communications content either in an online tool provided by the account custodian or if no such designation is made, the user may consent to disclosure in a Will, power of attorney, trust instrument, or other planning document. This express consent will override the terms of service agreements that generally prohibit access or disclosure. Without express consent, the custodians may only disclose a catalogue of communications, not content, unless a court order grants a personal representative access to content, and court may direct disclosure only to the extent specific information is reasonably necessary for the administration of an estate. [Read more…]