February 2013 List of State Laws and Proposals Regarding Fiduciary Access to Digital Property During Incapacity or After Death

Note: please refer to this August 2013 post for an updated list of state laws.

When a person becomes incapacitated or after a person dies, there are significant challenges that fiduciaries and family members face when dealing with that person’s smartphones, computers, electronically stored information, online accounts, Internet domain names, and other digital property. As I’ve mentioned in previous posts, there are four main obstacles for fiduciaries and family members trying to access this digital property (especially online accounts like e–mail accounts, social networking accounts like Facebook, etc.): (1) passwords; (2) encryption; (3) federal and state criminal laws that penalize “unauthorized access” to computers and data (including the Computer Fraud and Abuse Act); and (4) federal and state data privacy laws (including the Stored Communications Act).

in May 2011, my colleague Gene Hennig and I submitted to the Uniform Law Commission a Project Proposal for a uniform law to grant fiduciaries specific powers and authority regarding a person’s online accounts and digital property during incapacity and after death. In January 2012, the Uniform Law Commission appointed a Study Committee, which presented its final report at the July 2012 Uniform Law Commission annual meeting. On July 17, 2012, the Uniform Law Commission appointed a Drafting Committee on Fiduciary Access to Digital Assets to prepare a uniform law on this topic. The first meeting of the Drafting Committee was held November 30 and December 1, 2012, and the second meeting of the Drafting Committee is February 15–17, 2013.

As of the date of this posting, I am aware of five states that currently have enacted specific laws to help fiduciaries deal with e–mail fiduciary access to online accounts, although I believe that several of these laws are too limited in scope:

1. Connecticut Statutes § 45a–334a (see also Proposed Bill 5227 introduced January 11, 2013, status)
2. Idaho Statutes §–15–3–715(28)
3. Oklahoma Statutes § 58–269
4. Rhode Island General Laws Chapter 33–27
5. Indiana Code § 29–1–13–1.1

As I mentioned above, the Uniform Law Commission appointed a Drafting Committee on Fiduciary Access to Digital Assets to prepare a uniform law on this topic. As of the date of this posting (including the updates mentioned below), I am aware that the following other states that have already introduced or are considering introducing new legislation to address fiduciary access to digital property, although I believe that several of these proposals are too limited in scope:

1. California
2. Colorado
3. Maine: Legislative Document 850 introduced March 5, 2013, (to study the issue), status (thank you to Justin LeBlanc for notifying me about this bill)
4. Maryland: Senate Bill 29 introduced January 9, 2013, status
5. Massachusetts
6. Michigan: House Bill 5929 introduced September 20, 2012, status (thank you to Brian Cohan for notifying me about this bill)
7. Missouri
8. Nebraska: Legislative Bill 783 introduced January 5, 2012, status
9. Nevada: Senate Bill 131 introduced February 18, 2013, status (thank you to Ashley Watkins for notifying me about this bill)
10. New Hampshire: House Bill 116 introduced January 3, 2013, status
11. New Jersey: Assembly Bill 2943 introduced May 14, 2012, status
12. New York: Bill A823–2013 introduced January 9, 2013, status
13. North Carolina Senate Bill 279 introduced March 12, 2013, status (thank you to Evan Carroll for notifying me about this bill)
14. North Dakota: House Bill 1455 introduced January 21, 2013, status
15. Ohio
16. Oregon Senate Bill 54 introduced January 14, 2013, status (thank you to Evan Carroll for notifying me about this bill)
17. Pennsylvania: House Bill 2580 introduced August 23, 2012, status
18. Virginia: Senate Bill 914 introduced January 7, 2013, status

If you are aware of any other state that is considering this type of legislation, please contact me so that I can add it to the list.

[Updated February 25, 2013, to add links to Michigan bill; on March 18, 2013, to add links to Nevada, North Carolina, and Oregon bills; and on April 1, 2013, to add links to the Maine bill]