When You Die, Who Can Read Your Email?
A Controversial New Delaware Law Gives Executors More Access to
Online Data
*By**Rachel Emma Silverman**
**Wall Street Journal**
**
*****
***Feb. 1, 2015 11:00 p.m. ET*
http://www.wsj.com/articles/when-you-die-who-can-read-your-email-1422849600
Many Internet companies strictly limit access to their customers’
accounts to the account holder, in accordance, they say, with federal
privacy law. When an account holder dies, estate executors typically
have to seek a court order to access the account, which can be expensive
and time consuming—sometimes taking half a year or more—and isn’t always
successful.
But under a Delaware law passed last summer, executors can now access
online accounts without a court order, unless the deceased has
instructed otherwise. Similar legislation is under consideration in
several other states.
That’s an encouraging development to people like Andy Blair, an estate
lawyer in Raleigh, N.C., who says his parents have thousands of family
photos stored online. “Without a law like this,” he says, “I may never
get access to those” after his parents die. But a group of Internet
firms opposed the Delaware law
<http://netchoice.org/wp-content/uploads/Industry-Veto-Request-of-DE-HB-345-Signed.pdf>,
saying that it violates consumer privacy and may conflict with existing
federal privacy law.
Beyond Delaware
The new Delaware law also gives access to those serving as agents for
the deceased under a power of attorney, as well as court-appointed
guardians for those who are incapacitated, and to others serving in a
fiduciary role.
The law could affect people beyond Delaware’s borders. Although its
population is small, Delaware’s generous trust and tax laws make it a
popular place for people across the country to locate trusts,
particularly among wealthy families. Individuals can have a Delaware
trust even if they live in a different state, as long as a trustee is
located in the state. And under the new law, that trustee could access
the digital data of the person’s assets that are placed in the Delaware
trust.
Delaware’s law, called the Fiduciary Access to Digital Assets and
Digital Accounts Act
<http://www.legis.delaware.gov/LIS/lis147.nsf/vwLegislation/HB%20345/$file/legis.html>,
is modeled after an act drafted by the Uniform Law Commission, a group
appointed by state governments that writes up and lobbies for new state
laws. So far this year, at least 13 states, including Florida, Virginia,
Indiana, Kentucky, Nebraska, New Mexico, North Dakota and Washington,
are considering versions of this digital data act
<http://www.uniformlaws.org/Act.aspx?title=Fiduciary%20Access%20to%20Digital%20Assets>.
As legislative sessions get into gear this year, state-government
watchers anticipate that other states will consider or pass new rules
granting digital access to agents for the deceased.
Privacy Concerns
The law is designed to give legally appointed fiduciaries the same
access to digital assets as they would have for more tangible assets,
such as files stored in cabinets or photos stored in shoeboxes, but not
without some restraints. The law requires the fiduciary to follow the
deceased or incapacitated person’s instructions for how accounts should
be handled—which may include denying the fiduciary access to some or
even all accounts. If there are no written instructions, the fiduciary
can act as he or she sees fit, according to applicable laws.
A coalition of Internet firms unsuccessfully lobbied Delaware Gov. Jack
Markell to veto the legislation. Jim Halpert, general counsel of this
State Privacy and Security Coalition, says that, among other concerns, a
digital-account holder may not want the content of communication with a
doctor, counselor or patients disclosed.
The informal nature and sheer volume of most digital correspondence
makes it significantly different from old-fashioned letters, Mr. Halpert
says. “Email is a much more unfiltered form of communication,” he says.
“People may not show the side of themselves that they want and other
family members may be hurt by those communications.”
Taking Precautions
Mr. Blair recommends that account holders guard against such problems by
spelling out in estate-planning documents how they want all their
digital data treated, limiting access to sensitive accounts. He suggests
doing this now, even for people outside Delaware, to ensure that those
protections will be in place if the law changes where an account holder
lives.
Mr. Blair cautions that while family members may share digital passwords
and other login information, even a family member acting as a fiduciary
should contact a lawyer before accessing any accounts, because doing so
may violate state or federal law. “That’s where the minefield is right
now, and that’s why this act is so important,” says Mr. Blair. “Just
because you have the login and password doesn’t mean you can access it
whenever you want.”
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