Article on Nationwide Adoption of the RUFADAA

Elizabeth Sy recently published an Article entitled, The Revised Uniform Fiduciary Access to Digital Assets Act: Has the Law Caught Up with Technology?, 32 Touro L. Rev. 647 (2016). Provided below is a summary of the Article:

In 2014, there were only a few, albeit inadequate, state laws that governed digital assets. In an attempt to keep pace with changing technology, on March 3, 2014, the Uniform Law Commission (ULC) took a shot at creating a bridge between the will and the web by proposing the Uniform Fiduciary Access to Digital Assets Act (the UFADAA). Its purpose was to “vest fiduciaries with the authority to access, manage, copy, or delete digital assets and accounts.” However, in response to privacy concerns, NetChoice played defense by proposing the Privacy Expectation After-life Choice Act (the PEACA). The PEACA “aims to let fiduciaries have access to digital service providers to view only select contents of accounts,” such as the “To” and “From” lines of an email, so they know what organization to contact to close an account. The PEACA is backed by the Internet Coalition, an organization comprised of some of the largest technology companies including Amazon, Google and Facebook. On September 28, 2015, shortly after the opposition to its proposal, the ULC substantially revised the UFADAA, by creating what is now known as the Revised UFADAA (the RUFADAA), which not only sets forth comprehensive default laws, but also recognizes and protects the deceased user’s privacy.

Part II of this comment discusses the ever-evolving term “digital asset,” the emergence of the digital world, and their related legal implications. Part III provides two sample scenarios that trigger post mortem privacy concerns and introduces related societal opinions. Part IV addresses the effects of Internet Service Providers (ISPs), federal laws, state laws and the judiciary on the fate of digital assets. Part V briefly explains the ULC’s influence in the trust and estates area, analyzes one of its latest proposed laws – the RUFADAA, and proposes several changes. Ultimately, this comment advocates for the nationwide adoption of the RUFADAA in a revised form because it is the most comprehensive law that tackles both digital assets and privacy concerns.