Fiduciary-access-to-digital-assets
Illustration: Richard Mia. When You Die, Who Can Read Your Email?

A new law is making it easier for Florida personal representatives to access digital data—such as email, photos and social-media postings—after the account holder dies. It’s called the Florida Fiduciary Access to Digital Assets Act, and it’s modeled on the Revised Uniform Fiduciary Access to Digital Assets Act. This new legislation was passed as Senate Bill No. 494, and it goes into effect starting July 1, 2016. Once effective you’ll be able to find the new act at new Chapter 740 of the Florida Statutes.

The Florida Fiduciary Access to Digital Assets Act accomplishes two purposes. First, it provides fiduciaries the legal authority to manage digital assets and electronic communications in the same manner that they manage tangible assets and accounts. The act distinguishes between when a fiduciary may access the content of digital assets and electronic communications and when the fiduciary may only access a catalog of the digital property. Second, the act provides custodians of digital assets and electronic communications the legal authority they need to interact with the fiduciaries of their users while honoring the user’s privacy expectations for his or her personal communications. Most importantly, a custodian is granted immunity from liability for acts or omissions done in good faith compliance with the provisions of the new act.

And last but not least, the new legislation gives Internet users the ability to plan for the management and disposition of their digital assets if they should die or become unable to manage their assets. This is done by vesting fiduciaries with the authority to access, control, or copy digital assets and accounts.

For more on how the new law is supposed to work while still respecting legitimate privacy concerns, you’ll want to read the bill’s Legislative Staff Analysis. Here’s an excerpt:

General Overview

Because the Florida Statutes do not authorize fiduciary access to digital assets, the purpose of [Senate Bill No. 494] is to provide fiduciaries with specific authority to access, control, or copy digital assets and accounts. The four types of fiduciaries this bill applies to are personal representatives of decedents’ estates, guardians of the property of minors or incapacitated persons, agents who are acting under a power of attorney, and trustees.

According to the Real Property, Probate and Trust Law Section of The Florida Bar, or RPPTL, this act provides the legal authority that a fiduciary needs to manage digital assets in compliance with a person’s estate plan, while also ensuring that a person’s private electronic communications remain private unless the person gave consent for disclosure. The bill allows a user to specify whether his or her digital assets will be preserved, distributed to heirs, or destroyed. In keeping with federal privacy laws, the bill prevents companies that store electronic communications from releasing them to fiduciaries unless the user has consented to the disclosure. Fiduciaries are required under the bill to provide proof of their authority under Florida law to the custodians of the digital assets. Custodians that comply with a fiduciary’s apparent authorization request are given immunity from liability under the statutes that prohibit unauthorized access.

The Uniform Law Commission has stated [here] that this revised uniform act, which [Senate Bill No. 494] mirrors, gives Internet users the ability to plan for the management and disposition of their assets in similar ways that they make plans for tangible property. The bill has a three-tiered system of priorities in the event of conflicting instructions. Additionally, the bill is designed as an overlay statute that works in conjunction with a state’s existing laws involving probate, guardianship, trusts, and powers of attorney.

Limited Application

According to RPPTL, the bill is limited in its scope and applies only to fiduciaries who are already bound to act in compliance with their fiduciary duties and powers. The bill does not extend to family members or other people who seek access to digital assets unless they are also a fiduciary. Moreover, the ability of a fiduciary to access a digital asset does not entitle the fiduciary to own the asset or make transactions with the asset.

The scope of the bill is further limited by the definition of “digital assets.” The bill’s only application is to an electronic record, which includes electronic communications, and does not apply to the underlying asset or liability unless the asset or liability is itself an electronic record.

Online Tool

One significant addition to this year’s version of the bill that was not present last year is the concept of an “online tool” for directing fiduciary assets. The online tool is an electronic service provided by a custodian which allows the user, in an agreement separate and distinct from the terms-of-service agreement, to provide directions for disclosure or nondisclosure of digital assets to a third person.