States Quickly Adding Laws to Address Online Accounts

DCS is in the news again.  This time Communications Daily talks about new RUFADAA legislation and the critical need for people to who they want to have access to their online accounts.  Referred to as “the bible of the telecom industry”, Communications Daily highlights the growing awareness of the need to properly manage online accounts and digital assets, turning to DCS as the leading expert in digital asset management.

 


 

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Inheriting Online Lives

States Quickly Adding Laws to Address Online Accounts Following Users’ Deaths

Over the past year, 20 states passed laws allowing legally designated family members, friends or other fiduciaries to get access to a deceased person’s Facebook or Google accounts, email content and even to records stored in a cloud service. Experts said this is remarkable progress since the Uniform Fiduciary Access to Digital Assets Act (UFADAA) model legislation was revised last year, attracting support from the technology industry. Companies also have been doing more to educate users while providing ways for them to select people to inherit their online lives once they die.

“If I make an express statement in my will to disclose, industry has basically said we will move from a voluntary disclosure to a mandatory disclosure,” said Carl Szabo, senior policy counsel for NetChoice, which represents major e-commerce companies.

“That’s a huge give up on our side. So we will comply with the request in the will and give up our voluntary disclosure and make it a mandatory disclosure.”

Technology companies have said the 30-year-old Electronic Communications Privacy Act ties their hands on disclosing contents of a decedent’s electronic communications and accounts. Now, with the revised UFADAA, experts said there’s essentially a three-tiered system for providing access to a decedent’s online accounts. At the bottom, a company’s terms of service will apply. In a state where a version of UFADAA has passed, if a person gives express consent in a will or trust that a fiduciary be granted access, that trumps a company’s terms. Then there’s service provider mechanisms offered by Facebook or Google that supersede state laws and allow users to name a person to access the account, said Szabo. NetChoice provides information on its website about the process.

Experts said more legislatures, which meet for varying lengths, are expected to pass such laws. New Jersey and Ohio may still pass bills this year, said Benjamin Orzeske, chief counsel with the Uniform Law Commission, a state-supported group that crafted the model legislation. He told us he’s “hoping for universal or near universal coverage by the end of 2017” although some opposition is possible.

Consensus between estate and trust attorneys and families of decedents on one side and the technology industry on the other was critical in revising the model legislation and getting those bills passed, said Orzeske. Before, companies like Facebook or Google wouldn’t have given a family member access to a decedent’s online account since their terms of service would apply, he said. An exception for electronic communications, a subset of digital assets, was carved out. He said most digital assets are available by default to whoever is handling the estate, but the contents of electronic communications aren’t. “You can only get a list of them rather than the actual content of the message unless the decedent had left a will or trust or some sort of instructions saying that they did want somebody to have access to the content as well,” he added.

Stakeholders said more needs to be done to educate people about what they should do about their online accounts. Orzeske said most people who are dying now are elderly and may not have much of an online presence or digital trail. But younger people use email for everything now, making these laws necessary.

Directive Communication Systems helps people plan for what will happen to digital assets following their deaths, said CEO Lee Poskanzer in an interview. He said people may have dozens of online and offline accounts, and most haven’t even thought about what should be done with their digital accounts — but it’s gaining more attention. He said UFADAA is a “very strong starting point” but the issue is quickly evolving. “As new generations come along, there may be new needs in terms of access to content and information but particularly around security,” he said.

DCS handles some accounts that may be delicate matters. “We have a way to quietly and discreetly close non-cash value sites so that we prevent emotional hardship down the road where somebody might discover their spouse was cheating on them with AshleyMadison.com years ago,” said Poskanzer. “We would reach out to Ashley Madison with the passing information and account identifier and then request the account be closed.”

written by Dibya Sarkar


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