Digital Remains Laws

Legislators and law reform bodies in a number of jurisdictions are engaged in drafting laws to address the digital remains issue.  This page provides links to existing and emerging legislation.  It was last updated on 17 August 2014.

United States

Nine US states have enacted legislation to deal with the digital remains issue.

State Effective Date Scope of the Law Power Created
Connecticut 01 October 2005 e-mail accounts only Request and obtain access to or copies of
Indiana 01 July 2007 Documents or information of a deceased person which are stored electronically
Rhode Island 02 July 2007 e-mail accounts only
Oklahoma 01 November 2010 Accounts on any social networking website, any microblogging or short message service website or any e-mail service websites Take control of, conduct, continue or terminate
Idaho 01 July 2011
Virginia 01 July 2013 Digital account or an electronic account … with a terms of service agreement only when operated by a child Consent to or obtain disclosure of
Nevada 01 October 2013 Accounts on any social networking website, any microblogging or short message service website or any e-mail service websites -and- any similar electronic or digital asset Terminate
Louisiana 01 August 2014 Digital account which includes any account of the decedent on any social networking service, web log, microblog service, short message service electronic mail service, financial account, or any similar electronic services or record Take control of, handle, conduct, continue, distribute or terminate
Delaware 01 January 2015 Digital accounts which means an electronic system for creating, generating, sending, sharing, communicating, receiving, storing, displaying, or processing information which provides access to a digital asset.  Digital asset includes data, text, emails, documents, audio, video,  images, sounds, etc. … (see Act). Access to, transfer of, copy or destroy

At a national level the Uniform Law Commission (ULC) in the United States are in the final stages of drafting a Uniform Fiduciary Access to Digital Assets Act (UFADAA).   The UFADAA was approved by the ULC at its 123rd Annual Meeting in Seattle in July 2014.  I discuss an earlier draft of the proposed Act here and shall post an updated analysis on the approved UFADAA in the next week.  According to James Lamm the approved Act now moves to the ULC Committee on Style for review and editing a process which should be complete in October/November 2014.  It will then be available for State Legislatures to enact.   A copy of the UFADAA as approved can be found here.

A further eleven US states have begun to develop (or update) probate legislation to deal with digital remains.  A number of US states have initiated studies to review existing law and recommend changes.  Details of the proposed legislation efforts and studies can be found here.

Canada

The Province of Alberta enacted the Estate Administration Act 2014 (SA 2014 cE-12.5) earlier this year.  Included in the schedules of the Act are examples of activities that may be identified as the core tasks of a personal representative.  The schedule of tasks gives limited recognition to “online accounts”.  The Act makes no further direct reference to online accounts.  The task description of “identifying the estate assets and liabilities may include, but is not limited to”:

(b) determining the full nature and value of property and debts of the deceased person as on the date of death and compiling a list, including the value of all land and buildings, a summary of outstanding mortgages, leases and other encumbrances, and online accounts, and …

The Canadian liaison between the US Uniform Law Commission and the Uniform law Commission of Canada claims that the Alberta legislation was deliberately drafted to ensure that “the duties of personal representatives with respect to estates will apply to digital assets.”  He further advises that the section 1 definition of property is “intentionally broad enough to cover digital assets, without naming them.”   Under section 1 “property” means:

(i) real and personal property, as well as rights or interests in them,
(ii) anything regarded in law or equity as property or as an interest in property,
(iii) any right or interest that can be transferred for value from one person to another,
(iv) any right, including a contingent or future right, to be paid money or receive any other kind of property, and
(v) any cause of action, to the extent that it relates to property or could result in a judgment requiring a person to pay money; …

It appears that there is a minimum requirement under the Alberta Estates Administration Act that property falling within the scope of the Act must either have a monetary/pecuniary value, or be regarded in law or equity as property, or can be transferred for value to another person.  Where this threshold is achieved a personal  representative acquires the authority:

to do anything in relation to the property that the deceased person could do if he or she were alive and of full legal capacity

This provision limits the authority of the personal representative within the scope of the terms of service agreement which bound the decedent.  As most service providers prohibit the assignment or transfer of accounts the personal representative will, in most cases, be prevented from distributing online accounts to beneficiaries.  The personal representatives will generally be authorised to access an online account and will, in many cases, be authorised to copy or share user generated content from the account.   They may also acquire the authority to terminate the account.

Ultimately the application of the Act, to online accounts, will depend on whether service providers accept that those accounts fall within the definition of property.  Even if this threshold requirement is achieved the authority of a personal representative will be curtailed by the terms of service agreement.  It will be interesting to watch developments in Canada to see whether service providers are willing to permit personal representatives to step into the shoes of deceased account holders or not.

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Similar lists of legislative interventions are available from:

Pew Research Center blog post by Maeve Duggan (6 May 2014)

James Lamm at his blog Digital Passing (last updated 30 August 2013)

Everplans:  state-by-state digital estate planning laws (no last revised date)

The Digital Beyond blog maintained by Evan Carroll (no last revised date)

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Last updated: 17 August 2014

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