The University of Miami Law Review just published The Digital Death Conundrum: How Federal and State Laws Prevent Fiduciaries from Managing Digital Property (direct PDF link), a new article coauthored by James D. Lamm, Christina L. Kunz, Damien A. Riehl, and Peter John Rademacher. This article discusses the importance of estate planning for online accounts and other digital property, describes the types of fiduciaries that are appointed to act on behalf of an incapacitated or deceased person, and the main obstacles fiduciaries may face in dealing with digital property.
What do I mean when I say “fiduciary”? Generally, it’s a person appointed to act on your behalf. A living person may designate an agent under a power of attorney document to act on his or her behalf. If a person is incapacitated, a court may appoint a conservator (or guardian) to act on behalf of the person. If a person is deceased, a court may appoint a personal representative (also known as an executor) to act on behalf of the deceased person’s estate. A person also might establish a trust during lifetime or upon death that acquires or receives certain digital property, and the trustee acts on behalf of the trust.
Fiduciaries can run into a variety of problems when dealing with online accounts and other digital property, including passwords, data encryption, criminal laws on “exceeding authorized access,” and data privacy laws. The key federal laws that are obstacles are the Computer Fraud and Abuse Act and the Stored Communications Act (also known as the Electronic Communications Privacy Act). Online accounts also may have a restrictive Terms of Service Agreement that does not allow a user to share his or her password or allow anyone else to access his or her account.
The article proposes brief and focused amendments to the federal Computer Fraud and Abuse Act and to the Stored Communications Act to resolve the uncertainty of fiduciary authority and access to digital property. The article also describes an early draft of the Uniform Law Commission’s Fiduciary Access to Digital Assets model act, which is a model for state legislatures to enact that provides clear authority under state law for fiduciaries to access, manage, and deal with online accounts and other digital property. I’m hopeful that the Fiduciary Access to Digital Assets model act will be finalized in 2014 so that states can begin the process of considering and enacting it.
The article includes a sample will provision to consider that grants powers and authority over digital property to the personal representative of a decedent’s estate. Finally, the article includes a stand-alone sample Authorization and Consent for Release of Electronically Stored Information document to consider that authorizes fiduciaries to receive digital property for purposes of the Computer Fraud and Abuse Act and the Stored Communications Act. As noted in this blog’s disclaimer below, these sample provisions are intended for general educational and information purposes only—they should not be construed or relied upon as legal advice or opinion on any specific facts or circumstances, and you should consult with an attorney licensed to practice in your state concerning your own situation and any specific legal questions you may have.