Controversy for Digital Asset Legislation

The advent of technology and the digital age has introduced the world to cloud storage, e-mail accounts, and photo streams.  Today, almost everyone has assets that are stored as data and can be accessed online.  These “digital assets” may include text messages, e-mails, video images, source codes, software, online bank accounts, blogs, and much more.  The steady upshot of an individual’s online presence has given rise to a new legal issue—authority over administering digital assets and accounts of an account holder upon death or disability. 

As I have previously discussed, the Uniform Fiduciary Access to Digital Assets Act (UFADAA) is legislation drafted by the Uniform Law Commission to ensure account holders can retain control of their digital property and plan for its ultimate disposition after their death.  In August, Delaware became the first state to enact a law modeled after the UFADAA and will become effective January 1, 2015. 

While some view the UFADAA and the Delaware Act as a great solution to the estate administration issues raised by digital property, industry groups have criticized this legislation as encroaching on the privacy rights of the deceased.  In a recent blog post, Yahoo’s Senior Legal Director for Public Policy criticized the UFADAA for the “faulty presumption that the decedent would have wanted the trustee to have access to his or her communications” and for “setting the privacy default at zero.”  Other companies also publicly oppose the UFADAA and Delaware Act.  Facebook has stated it agrees with the concerns raised by Yahoo and Google, and co-signed an industry letter to Delaware’s governor, urging he veto the proposed law. 

See Fiduciary Access to Digital Assets and Accounts – Uniform Fiduciary Access to Digital Assets Act “UFADAA”, The National Law Review, Oct. 3, 2014. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.