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Wednesday, Mar 25, 2015 - Posted by Rich Miller

* Legislation introduced in both chambers has Facebook and Yahoo worried…

Creates the Uniform Fiduciary Access to Digital Assets Act. Defines terms. Provides procedures and requirements for the access and control by guardians, executors, agents, and other fiduciaries to the digital assets of persons who are deceased, under a legal disability, or subject to the terms of a trust.

The Senate bill passed unanimously out of committee and is sitting on 3rd Reading.

The idea is to create a legal structure for taking over somebody’s online accounts and other “digital assets” when they pass away or become incapacitated. But there could be some big privacy problems with this idea. Your executor would have complete access to all your stuff, even if you didn’t officially appoint an executor, or your court-appointed guardian in the case of incapacitation. And there are some unintended consequences as well. What if a woman is incapacitated by her abusive husband, who then gets access to all her private info?

* From Dan Sachs, Facebook associate manager of state policy…

“The people that use our service should be able to control who has access to their digital archives, particularly their private communications, upon their death – not legislators and not a fiduciary that a person did not affirmatively select. There are many Illinoisans with online accounts. This bill would effectively ignore the wishes of all of those people when they die, set aside decades of settled law, and override the innovative tools and options companies provide to protect those accounts.”

Facebook offers a “Legacy Contact” function which allows users to select someone to manage their account after they pass on – or to decide if they’d like to have their account deleted upon verification of their death.

* From Bill Ashworth, Senior Legal DIrector, Public Policy, Yahoo…

“At Yahoo, we take our users’ privacy seriously. That’s why we’re concerned with the draft legislation currently before the Illinois State House of Representatives (HB 4131) which, if approved, would automatically–and without permission–give access to the online lives of our Illinois users to their fiduciary at the time of their death. Each of our users should decide when and how they share their personal emails, messages and photos. We believe that account holders and individuals—not legislators—should determine what happens to a person’s digital archives at the time of their death.”

* Companies almost never welcome these sorts of intrusions. But what about all the other online services one might have? A well-written statute would give us a uniform standard. Not saying that these bills are well-written, just sayin.

I personally haven’t set up any mechanism to give anyone authority to access my website, e-mail accounts, Facebook, Twitter, ScribbleLive, mobile phone, fax and e-mail distribution services, my computer password or even (come to think of it) my electronic gun safe passcode.

I really need to get that done soon. Not that I’m planning on going anywhere any time soon, mind you, just that stuff happens in life.

Anyway, to the bill…

* The Question: Regardless of how you feel about the particulars of this legislation, should there be a state law to determine a process for passing along digital assets when one dies or is incapacitated? Take the poll and then explain your answer in comments, please.

survey solution

30 Comments

- sss - Wednesday, Mar 25, 15 @ 11:15 am:
“Uniform Fiduciary Access to Digital Assets Act”

U-FAT-DAA

Sounds like twitter, Facebook, and Yahoo commenters right there.

- Vickie Moseley - Wednesday, Mar 25, 15 @ 11:19 am:
We already have laws in place to take care of a person’s physical and monetary assets upon death (I think it’s called Probate Law). Since identity theft is rampant and even Social Security accounts and tax returns are vulnerable it seems only prudent to have a structure to take care of online ‘assets’ or presence as well.

- Anon - Wednesday, Mar 25, 15 @ 11:23 am:
It’s a very real violation of privacy which is why groups like the Illinois Coalition Against Domestic Violence are opposed to the bill. It’s also the privacy of the person the deceased was communicating with that would be exposed.

- sleepysol - Wednesday, Mar 25, 15 @ 11:23 am:
Nothing like this would ever get passed at the Federal Government, and the only other state that might do something like this is California, but they cow-tow to much to silicon valley for this. I voted yes.

- dupage dan - Wednesday, Mar 25, 15 @ 11:29 am:
Is a law like this really necessary to facilitate this? Create a trust if you want someone to have access to your assets.

- DuPage - Wednesday, Mar 25, 15 @ 11:30 am:
Instead of 50 different states laws and regulations, one set of uniform FCC rules would be more manageable.

- a drop in - Wednesday, Mar 25, 15 @ 11:30 am:
No. Has to be federal not state.

- Belle - Wednesday, Mar 25, 15 @ 11:35 am:
I said yes but meant no
Put it in your will. Or make sure whoever is going to be your executor of your will understands about your accounts, passwords, etc. Attorneys might take an active role in reminding people of this when they are drawing up wills.

- walker - Wednesday, Mar 25, 15 @ 11:36 am:
du page dan: Part of the problem, I believe, is that there is no process by which the on-line entity must honor the request of the trust. There dos need to be some standards and clarity.

- RNUG - Wednesday, Mar 25, 15 @ 11:37 am:
I’m in the middle of probating my mom’s estate, so I’m a bit more sensitive to this issue than some people would be.

Yes, there should be a uniform structure. HOWEVER, the structure should be one that kicks in ONLY if the will or a existing arrangement with the provider did not already exist.

For example, in the financial world an executor can legally discover assets that were TOD’ed to other people (and who is supposed to receive them) but they are not allowed any control of those assets because a pre-existing arrangement with the bank (and law) governs the transfer of those assets. Your online presence should have a similar mechanism for transfer.

And Rich, for better or worse, Mrs RNUG does know the combination to my gun safe.

- Tom B. - Wednesday, Mar 25, 15 @ 11:39 am:
If one passed away tomorrow, what is the normal method of having access to paperwork, physical assets, etc.? Don’t you just make the same process for digital? Seems like common sense.

- jazzy - Wednesday, Mar 25, 15 @ 11:40 am:
I voted no. Really about privacy of individuals

- Been There - Wednesday, Mar 25, 15 @ 11:43 am:
==== This bill would effectively ignore the wishes of all of those people when they die, ====
It should be like any other assets of your estate. If you don’t have a will or trust, then state law stipulates what happens to your assets. It actually is set up pretty well with passing on to your heirs. If you want to do it different from the law out it in your will

- ArmyMan - Wednesday, Mar 25, 15 @ 11:52 am:
I voted No. It is too easy for a surviving friend or relative to provide a copy of a death certificate and/or will, and then gain access or control of any number or types of accounts, digital and otherwise. I’d rather my accounts be closed and deleted upon my death, without anyone having access to the content of those accounts.

- Anonymous - Wednesday, Mar 25, 15 @ 12:11 pm:
I think the issue often is that those email, Facebook accounts do not cease to exist after someone dies, and no one including the executor, heir, etc. has control. Control stays with the entity such as Facebook. That is a very scary thought.

- VanillaMan - Wednesday, Mar 25, 15 @ 12:12 pm:
It is a solution in search of a problem which will only create more confusion since it overlaps existing laws regarding property.

NO

- Nick - Wednesday, Mar 25, 15 @ 12:33 pm:
It should be an opt-in system, like how Facebook’s legacy works

- Norseman - Wednesday, Mar 25, 15 @ 12:41 pm:
I’d prefer a federal solution since we are obviously talking about a medium that transcends state boundaries, but I do believe some standards should be put in place. People don’t do estate planning very well and now you add digital assets to the mix. If there are problems Facebook and Yahoo, suggest fixes. One could be that an account holders preferences would prevail should preferences be indicated.

- A guy - Wednesday, Mar 25, 15 @ 1:00 pm:
However briefly it was, I saw something I’ve never seen on the QOTD (besides 0-0) A tie. Wow.

- McDouble - Wednesday, Mar 25, 15 @ 1:01 pm:
I voted “No” because if there should be a law, it should be at the federal and not state level.

- Responsa - Wednesday, Mar 25, 15 @ 1:50 pm:
Those who say “put it in a trust”, “put it in your will” are overlooking that many of the problems that have surfaced in this area are are for younger facebook/ social media type users who have died suddenly or violently and have no will or trust because they still think they are invincible. There needs to be a simple law to address this, but it needs to be federal and uniform. Not state by state.

- Illinoisvoter - Wednesday, Mar 25, 15 @ 1:52 pm:
Anonymous is correct and having lost a child at nineteen can report that dealing with some of these corporations is just bazaare.

- Ugly Rumours - Wednesday, Mar 25, 15 @ 1:53 pm:
I agree with Nick, leave it up to the account holder.

- RNUG - Wednesday, Mar 25, 15 @ 2:00 pm:
== … have no will or trust ==

Everyone who has any kind of commitment (spouse, dependent) should have a will.

- Vote Quimby! - Wednesday, Mar 25, 15 @ 2:09 pm:
I voted no, agreeing with others this should be a federal issue (if at all) not a state issue. What if I am a snowbird and something happens while I’m residing in another state with similar (yet different) statutes?

- A guy - Wednesday, Mar 25, 15 @ 2:37 pm:
Vote Q, wherever your account originated. Probably here. Wills are generally filed in one’s home county, especially after a person passes.

- Jogger - Wednesday, Mar 25, 15 @ 2:42 pm:
Voted no- this should be handled at the federal level.

- A guy - Wednesday, Mar 25, 15 @ 4:37 pm:
When someone dies, the only Federal task to accomplish is notifying Social Security. In some cases the VA. Everything else is dealt with at the county level. A state law is just fine. If/when the feds catch up, it will most likely mirror state laws. The choice is pretty simple here. “Someone you know or is appointed to handle this does…or no one does. Ever.”

- Anonymous - Wednesday, Mar 25, 15 @ 11:05 pm:
I would like to see a state or federal law concerning digital inheritances. Right now I see a whole lot of different directions for closing accounts, accessing accounts, etc. For example, Facebook’s policy is to keep someone’s page for 90 days after death. Do wills and trusts even supersede the terms of agreement and service that was checked and probably not read by the deceased? I think some clarity and standardization is needed.

- Dairyman - Thursday, Mar 26, 15 @ 11:00 am:
Without a law, one must sue to gain access of any online account. if one leaves behind passwords to accounts, the loved one is violating terms of service and guilty of a minor cyber crime. We were blocked to our 15 year old accounts by providers. and currently only 2 companies, Facebook and Google allow any type of access upon death. Not even through a will are they required to give you anything. Vote for UFADAA

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