Minnesota’s KMSP-TV Fox 9 News ran a video story on September 9, 2014, by Ted Haller about a family wanting access to their deceased nineteen-year-old son’s digital data. They have been seeking access to his text messages, e-mails, and Facebook account to find out more about the moments leading up to his tragic death.
I was interviewed for the story to comment about the current federal privacy laws that restrict disclosure of private electronic communications, how service providers could change their Terms of Service agreements to clearly authorize fiduciary access, and what online account users can do to plan ahead for incapacity and death.
The Anderson family, which was interviewed for the KMSP-TV Fox 9 News story about their nineteen-year-old son, is hoping to get 20,000 signatures to an online petition asking the Minnesota State Legislature to pass a law clearly authorizing fiduciary access to a deceased person’s digital data. If you’d like to show your support, the online petition is available here: http://www.gopetition.com/petitions/accessing-jakes-digital-data.html.
Technology is changing the way we interact with people and transact business. We are accumulating valuable and significant electronic data in our smartphones, computers, and online accounts. We need to plan ahead for our data and online accounts so that our fiduciaries and family members can access that data after we become incapacitated and after we die.
First, you should make a list of your valuable or significant data, online accounts, and digital property. This could be a written list or an electronic list stored in your smartphone, in your computer, or in an online account. Make sure to indicate where each account or digital property item is located, how to access it, and why it’s valuable or significant to you. And, make sure to keep the list up-to-date!
Second, if you have been storing valuable or significant data exclusively in online accounts (for example, your digital photos), it’s important to regularly back up that data to local storage media—to your computer’s hard drive, a USB flash drive, a CD, a DVD, etc.—so that your fiduciaries and family members will have access to that data without the additional obstacles that online accounts have. One obstacle that could be avoided is the Stored Communications Act, also known as the Electronic Communications Privacy Act, which creates privacy rights to protect the contents of certain electronic communications and files from disclosure by a provider of an electronic communication service or a remote computing service, unless an exception is met under that law. A second obstacle that could be avoided is a potential criminal charge for “exceeding authorized access” to your online accounts, under federal or state laws, if a fiduciary or family member violates the access rules of that account’s Terms of Service agreement. Some service providers prohibit you from sharing your password or allowing anyone else to access your account, but other providers do not have these prohibitions. It’s important to read the Terms of Service agreement before attempting fiduciary access to an online account.
Third, you should contact your estate planning attorney to include plans for your digital property in your estate plan. Make sure your estate plan specifies your wishes about your property and appoints a fiduciary to act on your behalf with respect to all of your property, including your digital property, during incapacity and after death. This may include preparing a durable power of attorney, a will, and a revocable living trust (if appropriate for your situation). You should contact an estate planning attorney who is licensed to practice in your state concerning your own situation and any specific tax or legal questions that you may have. And, make sure that your estate planning documents explicitly authorize the companies that hold your electronic data to release that data to your fiduciaries during your incapacity and after your death, which is important for the Stored Communications Act’s privacy protections.
Planning ahead for your digital property is essential to arrange for full access to your data, to keep estate administration costs down, to provide for a smooth estate administration, and to ensure that none of your valuable or significant digital property is overlooked. If you haven’t planned ahead, a computer forensics expert may be able to recover and access data from your smartphone or your computer. But, it may be practically impossible to retrieve the data from your online accounts if you haven’t planned ahead!
To help deal with situations where an incapacitated or deceased person did not plan ahead in the person’s estate plan, many states are now considering adopting the recently-approved Uniform Fiduciary Access to Digital Assets Act (UFADAA). Eight states so far have enacted laws on fiduciary authority regarding digital assets after death, and Delaware was the first state enactment based on UFADAA.
Contact your estate planning attorney today to include your digital property in your estate plan!