Following the recent dust-up over Facebook's less-than-stellar management of user data, protection and planning for our digital assets seems an appropriate subject for this weeks article.
In 2016, Oregon became the first state to adopt the Revised Uniform Fiduciary Access to Digital Accounts Act (RUFADAA). Effective January 1, 2017, Oregon residents can direct the disposition of their digital assets upon death or incapacity. While RUFADAA offers more privacy protection than previously available, the new law has also made it more important for estate planning documents to specifically address the disposition of digital assets.
Understanding your Digital Assets
If you own a computer, odds are you have and use digital assets on a daily basis. The most common digital assets include digital photos, online blogs, audio and video files, emails, text messages, and other online content such as Facebook messages. While digital assets can be stored directly on your computer, the majority of this content can be found on Internet and cloud-based services, such as Instragram, Facebook, and Gmail, to name just a few.
People often fail to realize that once their digital content is uploaded to these Internet-based platforms, they become subject to each provider’s (i.e., Facebook) terms of service. These terms of service may (and often do) place significant limitations on who may access this content after the owner has passed away.
While digital assets such as these may in most cases have no extrinsic economic value, they often carry a certain sentimental significance to our family and friends once we pass. For this reason, it is important to understand the potential fate of our digital assets in the absence of proper planning.
Why Planning is Important
Under Oregon law, fiduciaries (such as personal representatives in probate proceedings) are generally authorized to take all necessary actions to administer the estate of a decedent. Under RUFADAA, in the realm of digital assets this authority permits fiduciaries to access a “catalogue”, or list, of digit assets, but does not automatically authorize access to the content of a deceased individual's digital assets.
In order for a fiduciary, friends, or family members to lawfully access the content of your digital assets, RUFADAA places great significance on whether the deceased individual expressly consented to disclosure of the digital content to the individual seeking access. Absent such express consent, there may be no lawful avenue for friends and family to access your digital content, and the online provider’s terms of service will control. Often, these terms of service agreements grant the online provider authority to simply delete content upon the owner's death.
To fully grasp the significance of RUFADAA’s “express consent” requirement, it is helpful to understand the distinction in the new law between a “catalogue” of digital assets, and the actual “content” of digital assets. A “catalogue” can be likened to a list of individuals with whom you have had a telephone conversation, along with the date, time and length of those conversations. “Content”, on the other hand, is akin to the actual recordings of those telephone conversations.
The content of your digital assets, then, is the actual text of an email, the digital photograph itself, the audio of a recorded song, or the substance of a Facebook message. While a catalogue of your digital assets may help identify what digital assets are out there, a list of file names and dates of email and text message communications may offer little solace to friends and family.
Furthermore, even if your fiduciary or loved ones are able to gain access to your digital assets through a list of passwords or other means, it is never advisable to do so. The Federal Computer Fraud and Abuse Act imposes both criminal and civil liability upon anyone who intentionally accesses a computer without authorization. In addition, all 50 states have laws criminalizing unauthorized access or hacking of individual computers and computer systems. Although it may seem unlikely that a family member or friend would be prosecuted for accessing a deceased loved ones account, doing so without express consent may nonetheless be illegal.
How to Plan for your Digital Assets
At this point, you may be wondering what steps you can take to ensure that your family and friends are able to lawfully access your digital assets after your pass. The simplest and most straightforward way to meet RUFADAA’s express consent requirement is to incorporate digital asset planning provisions into your existing estate plan. This can be accomplished by incorporating a consent provision in your Power of Attorney and Will or Living Trust that authorizes your fiduciary to access a catalogue of digit assets, and expressly designates individuals, such as friends and family, who can access the content of your digital assets. This type of planning will ensure that those individuals designated will have access to the full content of your digital assets.
Much like our physical belongings, digital assets can be an invaluable part of the grieving process for those we leave behind. We should all take the time to make sure these assets are still available to our loved ones after we pass.