Death and Live Feeds Privacy Protection in Fiduciary Access to Digital Assets

Abstract

In 2014, the Uniform Law Commission approved the Uniform Fiduciary Access to Digital Assets Act (the “UFADAA”) for enactment by states. The act gives fiduciaries broad access to digital assets, such as email and social media accounts, left behind by a decedent. Several states have already adopted laws regarding access to certain digital assets, but the UFADAA is distinctive in its asset-neutral approach, which treats digital assets like physical assets for the purposes of estate administration.

This Note argues that an asset-neutral approach to digital assets is fundamentally flawed, particularly with respect to social networking and social media content. Digital assets offer a level of comprehensiveness with regards to personal information that is unavailable from physical assets, both in nature and volume. Crucially, digital assets are also often linked to live, real-time feeds from other users’ accounts, and thus provide access to others’ digital assets.

The Note proposes changes to the UFADAA and the version of the act adopted by Delaware that recognize these differences between digital and physical assets. In order to protect the privacy of all users, both living and dead, the Note argues that fiduciary access should be limited to only the particular decedent’s digital assets. Internet service providers should accordingly be required to restrict a fiduciary’s access in this way and to exclude the digital assets of other living users who are still connected to the decedent’s accounts and assets.