Written By: Erik Boos
What happens to your Facebook or your Gmail account if you die or become incapacitated? Did you read your Terms of Service agreement? Many of these social media and email service providers expressly prohibit anyone but the account holder from accessing these services. This prohibition applies to your spouse, next of kin, or anyone who you wished to manage your affairs. Recognizing the importance of allowing a fiduciary to have access to digital assets, the National Conference of Commissioners on Uniform State Laws drafted the Uniform Fiduciary Access to Digital Assets Act (UFADAA) which was completed in July, 2014 and enacted in Delaware. Several other states introduced this bill to their legislatures. This bill will supersede access restrictions in terms of service agreements for those who are acting under a power of attorney.
Currently, certain accounts may not be legally accessed by people other than the account holder. Even if the account holder grants authority through a power of attorney or some other instrument, two federal laws stand in the way of that person having legal access to those accounts. The Stored Communications Act (SCA), and the Computer Fraud and Abuse Act (CFAA). The CFAA makes it illegal for anyone to attempt to gain access to a “protected computer” without authority. A “protected computer” includes the server computers that service providers use to provide their services. The authority to access an account may be limited by the Terms of Service Agreements the account holder had to accept in order to open and maintain those accounts. Those Terms of Service Agreements become a binding contract between the account holder and the service provider. In the case that upon death or incapacitation an account holder left a power of attorney authorizing the agent to access the holder’s account, while providing the log in information, the attempt to access those accounts could be a federal crime if the Terms of Service Agreement for that particular service limit access to only the account holder.
In addition, the SCA could prevent a service provider from being compelled to give access to the account holder’s agent. The SCA prohibits service providers from knowingly divulging contents of electronic communications stored or maintained on its service. The SCA does allow for disclosure of the protected information provided there is lawful consent by the originator, addressee, or intended recipient of such communications, or their “agents”, it is unsettled if by “agent” the law includes an attorney-in-fact, or other fiduciaries. The law was meant to provide stored communication such as emails with Fourth Amendment protections, as well as protection from hackers and corporate espionage.
The UFADAA allows access to other digital assets, but does not override existing copyright law. You may or may not own you digital media. Some software may legally be resold provided that no copy remains on your computer, but many programs today are “sold” with a single user license. What this means is that you are not the owner of this software. You may have ownership rights over the disk – the physical medium on which the software resides – but the contents of that disk you are only authorized to use. To transfer the disk would violate your licensing agreement. The same is true of any digital recordings of music or video.
The Recording Industry Association of America states that you may make a digital copy of a compact disk that you legitimately own for your personal use. The reason is you already bought it, and the royalties have been paid. If you no longer own the physical medium from which the copy was made, a copyright infringement on the holder’s exclusive right to reproduce just occurred. So, for example: the decedent has a vast music collection of compact disks, and for the sake of portability or ease of use, downloaded the music onto a large capacity external hard drive. The decedent dies and one person inherits the cd collection, another inherits the hard drive. Copyright infringement had occurred for each instance of a protected work that was copied and punishable ranging from $200 to $150,000 for each work. A personal representative needs to ensure this does not happen or else may face potential liability of unauthorized distribution.
The UFADAA goes a long way to enable personal representatives, conservators, and other agents the ability to access and manage digital assets for the deceased and the incapacitated. These assets have value, although the value may be difficult to ascertain, and would need to be administered as much as the rest of a person’s estate.
Erik is a Staff Member of the Journal of High Technology Law. He is currently a 2L at Suffolk Law with a concentration on Business Law and Financial Services and is a candidate for an LL.M in Taxation. He holds a B.A. in History from Worcester State University.