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. The first challenges are finding the person’s digital property and identifying which digital property is valuable or significant. Then, fiduciaries have several additional, significant digital property obstacles to overcome, including: (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).
As of the date of this posting, I am aware of seven states that currently have enacted specific laws to help fiduciaries deal with some fiduciary access to online accounts, although I believe that several of these laws are too limited in scope:
- Connecticut Statutes § 45a–334a gives the personal representative of a deceased person’s estate the powers to access or copy the contents of the person’s e–mail accounts (see also Proposed Bill 5227 introduced January 11, 2013, status).
- Idaho Statutes § 15–3–715(28) gives the personal representative of a deceased person’s estate the powers “to take control of, conduct, continue, or terminate” a deceased person’s e–mail account, social networking account, microblogging account, or short messaging service Web site, and Idaho Statutes § 15–5–424(3)(z) also grants similar powers to a person’s conservator.
- Indiana Code § 29–1–13–1.1 allows the personal representative to access or copy any of the decedent’s documents or information stored electronically by a “custodian,” and it requires the custodian to retain a deceased person’s electronic information for two years after receiving a request for access or copies.
- Nevada Revised Statutes chapter 143 has a new section taking effect October 1, 2013, (see Nevada Senate Bill number 131) that gives the personal representative of a deceased person’s estate the power to direct the termination of any online account or similar electronic or digital asset of the decedent, but it does not address powers to access these accounts or copy the contents.
- Oklahoma Statutes § 58–269 gives the personal representative of a deceased person’s estate the powers “to take control of, conduct, continue, or terminate” a deceased person’s e–mail account, social networking account, microblogging account, or short messaging service Web site.
- Rhode Island General Laws Chapter 33–27 gives the personal representative of a deceased person’s estate the powers to access or copy the contents of the person’s e–mail accounts.
- Virginia Code § 64.2–110 gives the personal representative of a deceased minor’s estate (but not a deceased adult’s estate!) the power to assume the minor’s Terms of Service agreement for an online account “for purposes of consenting to and obtaining the disclosure of the contents of the minor’s communications and subscriber records pursuant to 18 U.S.C. § 2702.”
The Uniform Law Commission appointed a Drafting Committee on Fiduciary Access to Digital Assets to prepare a model act on this topic, and they have a working draft that is expected to be finalized in 2014. As of the date of this posting, I am aware that the following other states 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:
- Maine: Legislative Document 850, passed May 21, 2013, appointed a commission to study the legal impediments to the disposition of digital assets upon an individual’s death or incapacity and develop legislative recommendations based on the study by December 1, 2013.
- Maryland: Senate Bill 29 introduced January 9, 2013, status (note: this bill received an “unfavorable” report by the Senate Judicial Proceedings Committee on February 14, 2013).
- Massachusetts: Senate Bill 702 (House Bill 1314), introduced January 22, 2013, status (see also Senate Bill 754, introduced January 24, 2011, Senate Bill 2205 introduced April 5, 2012, and Senate Bill 2313 introduced June 21, 2012).
- Michigan: House Bill 5929 introduced September 20, 2012, status, and Senate Bill 293 introduced April 10, 2013, status.
- Nebraska: Legislative Bill 783 introduced January 5, 2012, status (note: this bill was indefinitely postponed as of April 18, 2013).
- New Hampshire: House Bill 116 introduced January 3, 2013, status.
- New Jersey: Assembly Bill 2943 introduced May 14, 2012, status.
- New York: Bill A823–2013 introduced January 9, 2013, status; Bill A6034–2013 introduced March 13, 2013, status; and Bill A6729–2013 introduced April 17, 2013, status (thank you to Damien McCallig for notifying me about Bill A6034–2013).
- North Carolina Senate Bill 279 introduced March 12, 2013, status (note: the digital asset provisions contained in the first two versions of this bill were removed before this bill was signed into law June 12, 2013).
- North Dakota: House Bill 1455 introduced January 21, 2013, status (note: this bill did not pass the vote taken in April 2013).
- Oregon Senate Bill 54 introduced January 14, 2013, status.
- Pennsylvania: House Bill 2580 introduced August 23, 2012, status.
- Virginia: Senate Bill 914 introduced January 7, 2013, status.
If you are aware of any other state (or state bar association) that is considering this type of legislation, please contact me so that I can add it to the list.