Fiduciary Access to Digital Assets in Illinois: Complexity Is the Rule

                                                                                                                © 2016 Joan E. Emery
                The Revised Uniform Fiduciary Access to Digital Assets Act (2015) (the “Act”) can be divided into approximately 5 parts.  Those parts are preliminary matters (§§1-6), procedures for disclosure of digital assets (§§7-14), duties and authority of the fiduciary and the custodian (§§15-16), and administrative provisions (§§17-21 – however, at this time, section 17 is blank). 
                This discussion will focus on the procedures for disclosure of digital assets contained in Sections 7 through 14 of the Act.  Sections 7 and 8 address disclosure of digital assets of a deceased user.  Sections 9 and 10 are concerned with disclosure of digital assets of a principal under a power of attorney.  Sections 11 through 13 are directed at digital assets held in trust.  Finally, Section 14 addresses the disclosure of digital assets to a court appointed guardian.  For a probate estate, an agency relationship under a power of attorney, or a trust, the disclosure of digital assets is divided into two parts – disclosure of content of electronic communications and disclosure of other digital assets.  “Content of an electronic communication” is defined in Section 2 of the Act as “information concerning the substance or meaning of the communication which (A) has been sent or received by a user; (B) is in electronic storage by a custodian providing an electronic-communication service… or providing a remote-computing service…; and (C) is not readily accessible to the public.”   Section 2 of the Act also defines a “digital asset” as “an electronic record in which an individual has a right or interest.” 
                  If a fiduciary is seeking disclosure of digital assets, it is absolutely necessary to read the statute carefully, because the disclosure requirements can be quite extensive.  As an example, let’s look at Section 7 of the Act which contains the longest list of disclosure requirements.  Section 7 controls disclosure of the contents of electronic communications of a deceased user. 
             Section 7 of the Act contains the following requirements, which must be complied with in order for the custodian to disclose the contents of electronic communications to the personal representative of a deceased user’s estate:
                A.  The deceased user consented to the disclosure; or
                B.  A court directs disclosure; and
                C.  The personal representative gives the custodian:
                        (1)  A written request for disclosure in physical or electronic form;
                        (2)  A certified copy of the death certificate of the user;
                     (3)  A certified copy of the letter of appointment of the personal                                       representative or a court order;
                        (4)  Unless the user provided direction using an online tool, a copy of                           the user’s will, trust, power of attorney, or other record evidencing the                         user’s consent to disclosure of the contents or electronic communica-
                        tions; and
                        (5)  If requested by the custodian, the personal representative provides:
                             A)  A number, username, address or other unique subscriber or account                               identifier assigned by the custodian to identify the user’s account;
                              B) Evidence linking the account to the user; or
                              C)  A finding by the court that:
                                      i) The user had a specific account with the custodian, identifiable                                            by the information specified in subparagraph A);
                                  ii) Disclosure of the content of electronic communications would                                           not violate 18 U. S. C. Section 2701 et seq., as amended, 47 U. S.                                          C. Section 222, as amended, or other applicable law;
                                    iii) Unless the user provided direction using an online tool, the user                      consented to the disclosure of the content of electronic                                           communications; or
                                     iv) Disclosure of the content of electronic communications of the                                              user is permitted under this Act and [is] reasonably necessary                                               for the administration of the estate.
                 In order to determine which documents must be presented to the custodian, the first question which must be asked is, What constitutes consent to disclosure of the contents of electronic communications by the deceased user?  It appears that the grant of a broad power to the fiduciary to administer the deceased user’s assets is not sufficient, and, instead, the digital asset powers granted to the fiduciary must specifically described or defined.  Arguably, the simplest way to describe or define the digital asset powers granted is to refer to the Act and perhaps even to various provisions of the Act.  Second, if the deceased user did not consent to the disclosure of the contents of electronic communications by using an online tool or by providing specific consent in his or her will, trust, power of attorney, or other record, can the custodian disclose this information?  In the absence of consent, Section 7 appears to require that a court order must direct disclosure and must contain specific findings, including findings that disclosure is permitted under the Act and is reasonably necessary for the administration of the estate.