Delaware has become the first state to enact the Uniform Fiduciary Access to Digital Assets Act (the "Act") The Uniform Law Commission describes the act as a law "that will vest fiduciaries with at least the authority to manage and distribute digital assets, copy or delete digital assets, and access digital assets." The fiduciaries covered in the Delaware Act include executors, trustees, agents under a power of attorney, and guardians of incompetent individuals. The Delaware Act will likely go into effect on January 1, 2015 and will relate to residents of Delaware, regardless of where the digital companies are located.
The Wall Street Journal pointed out that this could conflict with federal laws enacted to protect consumer privacy that restrict companies from disclosing digital content without owner consent. One common critique of the Act is that communication with certain third parties that is private or confidential (such as lawyers, doctors, clergy) would be disclosed under the Act. But the same argument can be said for any physical property or letters that could be found at the deceased individual's home.
Google, on its own initiative, created an Inactive Account Manager. Google users can access this in their Account, under Data Tools. The Interactive Account Manager allows a user to provide contact information for 1 to 10 "trusted friends" that will be notified if your account is inactive for a "timeout period" set by the user. The shortest timeout period option is 3 months. After the timeout period, the named "trusted friend" will be notified he or she has access to your account and will be provided access to certain account data as specified by the user. Two important differences between this and the Act are (1) Google allows naming any number of "trusted friends" who may or may not agree on what to do with the information received and (2) Google will only notify the trusted friend after the timeout period, which could be up to 18 months. It is unclear if Google will comply with the less stringent requirements under the new Act, or whether it will stick by its user agreement and fight the Act.
(If you are looking for a refresher on digital assets, you may remember our prior four-part series on digital assets from December 2013. The final post contains links to the three prior posts as well.)