Model Fiduciary Access to Digital Assets Act

Model Fiduciary Access to Digital Assets Act

Summary: Reconciling federal privacy law with requests by fiduciaries and executors for access to digital assets of deceased person, has raised serious conflict of law and preemption questions for the states and privacy questions for users of online services. This model act balances the interests of estate administrators, with the privacy of users with whom and about whom they have communicated.  This act also recognizes the duties imposed on online service providers under the federal Electronic Communications Privacy Act (ECPA). This act clarifies the procedures to gain access to or obtain copies of the contents of the electronic communications of a deceased person. This act provides that access to copies of the contents of the deceased’s electronic communications is authorized upon a written request by the estate and an order by the court of probate. The estate would indemnify the provider from liability for complying with the court’s order. Finally, the act requires compliance with copyright law and privacy choices of online users.

Section 1. {Title} This Act may be cited as the “Fiduciary Access to Digital Assets Act.”

Section 2. {General Rule}

Access to decedents’ electronic communications. – An electronic communication service or remote computing service as defined in the Electronic Communications Privacy Act, 18 U.S.C. 2510, 2711 may provide, to the executor or administrator of the estate of a deceased person who was domiciled in this state at the time of his or her death, access to or copies of the contents of the electronic communications of such deceased person upon receipt by the electronic communication service or remote computing service of:

(1) A written request for such access or copies made by such executor or administrator, accompanied by a copy of the death certificate and a certified copy of the certificate of appointment as executor and administrator; and

(2) An order of the court of probate that by law has jurisdiction of the estate of such deceased person, designating such executor or administrator as an agent for the subscriber, as defined in the Electronic Communications Privacy Act, 18 U.S.C. § 2701, on behalf of his/her estate, and ordering that the estate shall first indemnify the electronic communication service or remote computing service as defined in the Electronic Communications Privacy Act, 18 U.S.C. 2510, 2711 from all liability in complying with such order.

(3) Any provision of access or copies of electronic communication is subject to copyright and other law as well as any applicable and enforceable terms of service agreement.

Approved by the ALEC Board of Directors January 9, 2014.

Keyword Tags: 2013 SNPS, Communications and Technology Task Force