by RICH CASSIDY on DECEMBER 2, 2012
The Uniform Law Commission’s Drafting Committee on Fiduciary Access to Digital Information conducted its first meeting November 30 through December 1, 2012 in Minneapolis, Minnesota.
We live in a world in which digitally stored information is of immense and increasing importance. Digital property can have, and often does have, very significant value. According to McAfee, American consumers value their digital assets, on average, at almost $55,000. Few owners of such assets consider the disposition of these assets upon death or disability. Some 30 million Facebook accounts belong to the dead. Yet, with rare exceptions, existing law does not address the resulting legal issues. Prefatory Note to the November 13, 2012 Discussion Draft
The purpose of the proposed Uniform Act on Fiduciary Access to Digital Information is to confer upon fiduciaries — such as executors, administrators, trustees, and agents under a power of attorney — the authority to access, manage, copy, or delete digital assets and accounts.
Two major policy issues are apparent in the initial draft. First, will that Act override terms of service agreements that do not explicitly permit fiduciary success to accounts? Second, will the consent of account-holders to fiduciary control be presumed or required to be explicit?
The initial draft is structured as amendments to the Uniform Probate Code, Uniform Power of Attorney Act, and Uniform Trust Code. These Acts have seen substantial, but by no means universal, adoption. The Committee will likely also have to address the possibility of a free standing statute for jurisdictions that have not adopted those statutes
Representatives of Google and Facebook attended the first drafting committee meeting.
The Drafting Committee is chaired by Commissioner Suzanne Brown Walsh from Connecticut, and the Reporter is Professor Naomi Cahn from George Washington University School of Law.
Rich