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William A. McComas: Delaware law eases access to decedent’s email

The novelty of our technologies enthralls many into believing that old laws cannot or should not apply to their use. If something is digital, it should enjoy a special status; it is wholly different, in essence and category, from its non-digital analogue. This is a common intellectual mistake. The failure to take new facts and apply them to longstanding laws has allowed technology companies like Google, Yahoo! and Facebook to make it all but impossible for next-of-kin to access the digital assets of deceased loved ones.

A case in point: In 2004 Yahoo! refused a father’s request to access the email account of his son, a U.S. Marine who had died fighting in Iraq. To turn over the soldier’s email to the family, the company insisted, would have been a breach of its terms of service, which prohibit Yahoo! from disclosing private email communications under any condition.

In contrast, the U.S. Marine Corps promptly ships all of a fallen soldier’s belongings to next-of-kin. It makes no distinction between property that has been opened or unopened (such as packages and letters) in the marine’s possession — everything goes to the family.

Likewise, in the annals of estate law, executors of wills have long had unfettered access to the assets, accounts and records (including paper correspondence) of the deceased. They exercise their discretion in sharing these items with others according to the terms of the will and longstanding estate law.

Technology companies like Yahoo! would have us believe that this principle of estate law should not apply to them. They insist that email and social media accounts are different from non-digital assets, books and records (including paper correspondence) held by third parties, such as a bank, in the case of a safe-deposit account. Digital communications are more private, more revealing, and subject to a carefully drafted terms-of-service agreements that guarantee users’ privacy, they argue.

There are several problems with the tech companies’ argument. First, the general rule is that dead people have no right to privacy so these companies should not be permitted to use it as a defense. Second, generally s successor in interest has the right to enforce the terms of the contract against the other party, including a waiver of any confidentiality provision. Third, these companies hold a decedent’s assets in the same manner that a bank holds their assets in a safe deposit box; estate and contract law has for decades provided the procedures for access.

Fortunately, lawmakers around the country have the power to right this wrong if technology companies insist on acting improperly, and if the courts are unwilling to apply longstanding applicable law to new technology. This August the governor of Delaware signed a law that, similar to enactments in a handful of other states, amended the state’s code concerning fiduciary access to digital assets and accounts, extending the principles of estate law into the digital age.

According to the new Delaware law, the executor or fiduciary of a will or estate subject to state law must be provided access to and control over the decedent’s various digital accounts after submitting a written request to account custodians (i.e. Google and Facebook). The executor or fiduciary will then be authorized but not required to transfer the various assets, including digital photographs, email, books and other records, consistent with the decedent’s wishes or law.

The law does not apply to any will or estate that is not subject to Delaware law, even if the accounts in question are maintained by a technology company that happens to be incorporated in Delaware. Given Delaware’s small size, the law will impact relatively few people.

Uniform model

The Delaware law is modeled on a Uniform Fiduciary Access to Digital Assets Act (UFADAA) approved this summer by the Uniform Law Commission, a body formed by state governments to propose new legislation. The UFADAA is needed given how difficult technology companies like Yahoo! have made it to access the digital assets, books, records and correspondence of decedents.

Not surprisingly, technology companies have opposed UFADAA on the grounds that it conflicts with federal law guaranteeing privacy of digital accounts. In particular, the 1986 Electronic Communications Privacy Act prohibits online service providers from disclosing contents of communications in court proceedings absent the account holder’s consent. Their reluctance is understandable; compliance requires the cost of implementing new procedures and processes similar to the ones that other custodians, like banks, have been executing for years.

But why should we treat digital accounts containing assets, books, records and correspondence differently than we do paper correspondence, or the contents of a safe-deposit box? Why are “off-line” assets somehow different from digital assets? The technology companies say that email and social media are different because, well, they are used differently than “snail mail.” We produce more electronically than on paper, and electronic assets are more sensitive than their paper counterparts.

Really? For some people this may be true, but not for everyone, and it certainly wasn’t always the case. Before the Internet, paper correspondence and other tangible records and assets were both revealing and voluminous. There is really no defensible difference. If these companies cannot do the right thing because of the costs required to behave properly, then state lawmakers are right to insist that technology companies own up to their responsibilities as custodians of our assets, books, records, correspondence, images and private information, from which they continue to profit.

The lawmakers in Annapolis should take up this measure sooner rather than later. Until then, perhaps those who draft wills should include a provision waiving any confidentiality provision or privacy claim under any online agreement.

William A. McComas is a partner at Bowie & Jensen and a member of the transactional and technology law departments. He can be reached at McComas@Bowie-jensen.com.