Defining, owning and accessing digital assets

Issue February 2015 By Debra Rahmin Silberstein and Christopher G.R. Davies

Twenty-five or so years ago the sound of dial-up modems bleeping and blurping their way to AOL's remote servers rang out in basements and home offices across the country. Users were eager to join chatrooms, access their "electronic mail" and begin the agonizing wait to load sites on the "information superhighway." Since that time, America hasn't been able to get enough of the Internet. As it has come to permeate every moment of our lives, from mobile email to wearable devices that track the quality of our sleep, we now have to consider the practicalities and legal consequences of dying in the digital age. The creation and dissemination of digital information - records, messages, images and histories - is the overriding function of a consumer's interaction with the Internet. What happens to the remnants of our online lives when our physical life has ended? How can our loved ones access this information, and do we want them to see it all or merely some of it? These are difficult questions to which there are no concrete answers.

Only a few states have passed legislation dealing with fiduciary access to so-called "digital assets." This legislation is relatively limited and generally applies only to personal representatives (some state statutes are more limited than others, for example the Virginia law only applies to personal representatives for estates of minors). However, the Uniform Law Commission has recently weighed in, with a comprehensive law known as the Uniform Fiduciary Access to Digital Assets Act (UFADAA). The commission recommends enactment in every state. To date, Delaware is the first and only state to adopt UFADAA. This article will provide a brief overview of the various problems associated with defining, owning and accessing digital assets; the ways in which UFADAA proposes to solve the access problem, and some steps planners can take to prepare for state legislation.

Problems

Digital assets present themselves in a multiplicity of forms. There are digital account numbers, log-in information, photographs, videos, emails, and documents. There are your "likes" on Facebook and Instagram, web search histories and "cookie" data, including information about your browsing and shopping history. There is digital media, such as e-books, movies and music from Apple, Amazon, Google and others. There is even digital currency, including bitcoin and other electronic "cryptocurrencies."

Given this varied taxonomy, UFADAA's definition of a digital asset ("a record that is electronic") is necessarily broad. The act defines the term "record" as information inscribed on a tangible medium or stored by electronic or other means. The definition does not include the underlying asset or liability, unless the underlying asset itself is an electronic record. The definition of a digital asset is therefore not limited to information that may be considered valuable to a decedent's estate. Personal emails and other messages, images, videos and other files, and comments, "likes" and browser histories all fall under UFADAA's broad definitional umbrella.

Massachusetts law currently includes digital assets as property of a decedent's estate. The problem that requires new legislation arises when digital assets are stored remotely, using products or services operated by third parties that UFADAA refers to as "custodians." Access to assets that are created, transmitted or stored on specific services (think Facebook, Gmail or Flickr) is governed by the agreement (generally, an end-user license agreement, or EULA) entered into by the user at the time of account creation. These agreements generally govern the ownership rights over the assets created by the user's interaction with the account, and the right of the owner to assign access rights over the account or delegate access to the account to another individual. Very generally, EULAs controlling access to online services include provisions that serve to limit access to the individual user. Such agreements often state that rights of access are non-transferable and terminate at the user's death. Giving a password (and hence access) to another person very often violates the EULA and is grounds for termination of the account.

EULAs often additionally provide that users retain ownership of and intellectual property rights to content submitted to or created through the account. Facebook, for example, includes such a provision in its terms of service agreement. Users are therefore free to copy, transmit and remove content from such services (assuming the user owns the underlying rights to such content).

UFADAA does not override substantive intellectual property or contract law, except to vest fiduciaries with authority to access, control or copy digital assets of a decedent. Thus, the decedent must possess a right or interest in the property that the fiduciary seeks to access.

The purchase of an e-book, digital audio or video file, for example, is generally not the acquisition of ownership rights, but of a license agreement granting the right to use the file. Digital media EULAs (for books, music, movies, etc.) such as Apple's iTunes, Amazon and Google Play generally provide that the license granted is non-transferrable. Music enthusiasts who are eager to pass on their digital collection may therefore be prevented from doing so. The nature of the problem with this kind of digital asset is therefore not that the asset is digital in nature, but that it is not an asset in the traditional sense. In estate planning terms, this kind of digital asset may be more like a digital life estate than a fee simple interest. UFADAA does not override this feature of many digital media licenses. The act does not make property "descendible." The fiduciary is granted no more and no fewer rights than the account holder had, acting individually. Therefore it does not affect the non-transferrable nature of licenses involved in the purchase of digital media, such as music, movies, and books.

The distinction between ownership and access creates a catch-22: while users often retain ownership of the digital assets contained within digital accounts and such property is considered part of the user's estate, fiduciaries and heirs are often denied access to these accounts to retrieve and distribute digital assets following the user's death.

Solutions

While the problem with access (and by whom) is currently being hashed out in the courts, the UFADAA is squarely aimed at this catch-22, by allowing fiduciaries to "step into the shoes" of the account holder.

UFADAA applies to personal representatives, attorneys in fact, court appointed conservators and guardians, and trustees (referred to collectively as "fiduciaries"). Through the act, fiduciaries act as representative agents of the account holder, and as such, access by the fiduciary is not considered a transfer, assignment or other use that would violate a EULA restricting access only to the originally authorized user.

To gain access to accounts, fiduciaries must send a certified copy of the appointment, power of attorney or trust certification that grants the individual the power to manage digital assets to the custodian of the asset, requesting access to the account. If the custodian fails to comply within 60 days, the fiduciary may apply to the court for an order directing compliance.

The power to access digital assets is not a blanket right for fiduciaries. UFADAA does not override an individual's explicit choice to limit access to digital assets. Thus, if an account owner agrees to limit fiduciary access in an affirmative act separate from his or her agreement to the other provisions of the EULA, then that limitation will override the UFADAA provisions granting access.

While UFADAA solves our catch-22 issue, so far it's only been enacted in Delaware. While we're waiting for legislation in Massachusetts, there are a number of practical steps clients can take as stop-gap measures.

Firstly, the estate planning process should include a digital audit. Clients should be encouraged to lay out each and every important online account they have, and securely save the login information for each. This can be done using 20th century pen and paper, or through a number of online services that are designed as password managers, with the ability to name fiduciaries to gain access upon death or incapacity. This list should be kept up to date as passwords and accounts change.

Additionally, estate planners should prepare for UFADAA by inserting language into trusts and powers of attorney that authorize fiduciaries to access and manage digital assets. Clients with privacy concerns may also wish to designate specific services to which they do not want their fiduciaries to be granted access. While language in estate planning documents may not be honored by service providers until UFADAA is enacted more broadly, clients will not have to revise estate planning documents in the future. Additionally, it's useful to note that UFADAA may not have to come to all states to be applicable. If it is adopted by even a majority of states, account custodians may change EULAs to mimic UFADAA's terms. Additionally, language should be added to documents that clarifies the principal or grantor's consent for the fiduciary to access data stored on local electronic devices.

Grantors who intend to acquire large libraries of digital media may also want to consider purchasing these assets in the name of a trust, which would potentially make such media descendible.

As the web's digital tendrils have come to entwine themselves around a greater share of our lives, clear gaps within existing legislation have emerged. The overriding purpose of UFADAA is to fill the gap that is presented by the distinction between ownership of digital assets and the fiduciary's need to access those assets to perform his or her fiduciary duties. The Uniform Act appears to address this problem simply, and with minimal impact on existing law. UFADAA may not solve all of our digital woes, but its widespread enactment would provide much-needed clarity in an increasingly important area.