© 2016 Joan E. Emery
It is estimated that by 2050, there will be more Facebook accounts for deceased users than for living users. It has also been estimated that a person now in his or her twenties has a 1 in 4 chance of being disabled for at least 3 months. The interrelationship between digital assets, disability, and death highlights the importance of the Illinois Revised Uniform Fiduciary Access to Digital Assets Act (2015) (the “Act”). My last two blog posts discussed the legislative history of the Act, some key definitions contained in the Act, and a sample of the statutory requirements for a fiduciary to access a user’s digital assets. I will discuss some additional important provisions of the Act and I will reply to the question of whether the Act should scare us.
This discussion will focus on four additional important provisions of the Act. The first of these provisions is Section 3 of the Act. This section describes what the Act does and does not apply to. For example, the Act applies to (1) a fiduciary acting under a will or power of attorney regardless of when it was executed, (2) a personal representative acting for a decedent, regardless of the date of death of the decedent, (3) a guardianship proceeding, regardless of when the proceeding was commenced, and (4) a trustee acting under a trust, regardless of when the trust was created. The Act does not apply to a digital asset of an employer, when used by an employee in the ordinary course of the employer’s business.
Another important provision of the Act is Section 4, which discusses disclosure of digital assets by means of an online tool, a will, trust, power of attorney, other record, or a terms-of-service agreement. According to Section 4, under some circumstances, an online tool trumps all other methods of directing disclosure. For example, if the online tool allows the user to modify or delete the direction at all times, a direction using an online tool overrides a contrary direction in a will, trust, power of attorney, or other record. If the user has not used an online tool or the custodian has not provided one, then the direction in a will, trust, power of attorney, or other record controls. If neither an online direction nor a direction in a will, trust, power of attorney, or other record exists, then the applicable provision (if any) in a terms-of-service agreement will control disclosure.
Section 15 is titled “fiduciary duty and authority” and it seems to focus on two aspects of a fiduciary’s potential duties, namely, (1) access to digital assets stored in the computers of a decedent, disabled person, principal, or settlor, and (2) the ability of a fiduciary to terminate a user’s digital assets account (e.g. email account, Facebook account, etc.).
“Custodian compliance and immunity” is the title of Section 16 and this section governs the custodian’s actions in the following 5 situations:
1. Not later than 60 days after receipt of the information required under Sections 7 through 15, the custodian must comply with the request from a fiduciary or designated recipient to disclose digital assets or to terminate an account;
2. A custodian may notify a user that a request for disclosure or termination has been made;
3. A custodian may deny a fiduciary’s or designated recipient’s request for disclosure or termination if the custodian is aware of lawful access to the account following receipt of the request;
4. A custodian may obtain or may require the fiduciary or designated recipient to obtain a court order which (a) specifies that the account belongs to the disabled person or principal, (b) specifies that there is sufficient consent from the disabled person or principal to support the requested disclosure, and (c) contains a finding required by law other than the Act; and
5. A custodian and its officers, employees, and agents are immune from liability for any act or omission done in good faith, except for willful and wanton misconduct, in compliance with the Act.
What is and what is not scary about the Act? In my opinion, the goal of creating a mechanism which permits a user to specify a fiduciary or designated recipient to administer the digital assets of that user is an excellent goal. However, in my opinion, the scary parts of the Act are the significant complexity to the Act and the numerous protections for custodians included in the Act. Although perhaps not realistic, in my opinion, a simpler version of the Act, focused more on users and their fiduciaries and less on custodians, would be a better (and arguably, not scary at all) version of the Act.
I am an attorney practicing in the Chicago area.