Thanks to the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) makes the transfer of digital possessions to fiduciaries, like executors and attorneys, legal.
It is only in 2012 that Uniform Law Commission began considering the legality of passing on one’s digital legacy. Previously, very few laws helped to determine who could access these files and accounts if the account owner became incapacitated or died. If the deceased or incapacitated person wanted any of their digital assets to be deleted, modified, or distributed to loved ones, there was no way to discern who would have a legal right to access them. Additionally, unless the person provided usernames and passwords, the fiduciary would have no ability to access them. Due to the vague and confusing nature of the situation, digital assets would often be deleted by the company that controls them, or they would just continue to linger on the Internet or on devices long after the person's death, deemed untouchable by family and friends.
Initially, the Uniform Fiduciary Access to Digital Access Act (UFADAA) treated digital assets like traditional property. This meant owners could decide what would happen to them and the fiduciaries could have control of them when the owner died or became incapacitated. Under this initial law, an appointed executor would have the same right to access the deceased person's accounts as the deceased person had during life. If the executor did not have or needed login or password information, he or she could ask the company for access and the company would have to comply.
The issues that were raised during the initial stages of this law were
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It invaded the deceased person's privacy in ways that they would not have imagined or wanted
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It raise liability concerns for the companies who promised to keep the accounts secure
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It infringed on the privacy of third parties whose communications or information might be exposed to the executor
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It miscategorized digital property, which is substantially different than traditional assets in the hands of an executor
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It created conflicts with the privacy provisions in federal law.
Invading personal privacy was a huge issue with this initial law and the reason why many privacy advocacy groups spoke out against the law. While many people believe that your life on the internet is public and an open book. However, many people also participate in parts of the internet they may be embarrassed by or there may be information they want to keep a secret from their family and friends. The initial law gave too much free reign to fiduciaries and conflicted with privacy rights of the deceased. Additionally, technology companies were forced to violate privacy laws while complying with UFADAA. Also, this overrides the Terms of Service agreements that companies have that make digital assets non-transferable and put strong restrictions on who can access accounts.
The revised version of the law greatly reduces the executor’s authority and access. The major changes to the law are briefed below:
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An executor no longer has authority over the content of electronic communications (private email, tweets, chats), unless the deceased person explicitly consented to disclosure.
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An executor can be allowed access to other types of digital assets; however, the executor must petition the court and explain why the asset is needed to wrap up the estate.
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If a fiduciary does not have explicit permission through a will, trust, or power of attorney, executors can look to the terms of service agreements to determine whether to comply with requests for access to a deceased person's account.
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Executors may: Request court orders; Limit their compliance by providing access only to assets that are "reasonably necessary" for wrapping up the estate; Charge fees to comply with requests for access; Refuse unduly burdensome requests.
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Executors may not provide access to deleted assets or joint accounts.
This new revised law will be enacted by most states but it is up to you, the individual, to ensure and determine how you want your personal digital assets managed.