9131 / How can the Uniform Fiduciary Access to Digital Assets Act help an individual in planning for disposition of digital assets?

Section 4 of the Uniform Act provides a means for users to provide instructions for the disposition or deletion of their digital assets, and establishes a priority system when online tools, legal documents, and terms of service conflict. Section 4 of the Uniform Act addresses the relationship of online tools, legal documents recording a user’s intent, and terms-of-service agreements.

A user may use an online tool to authorize or deny disclosure of some or all of the user’s digital assets, including the content of electronic communications. If the user’s wishes have been expressed using an online tool from a provider, those instructions will override a contrary instruction in a legal document (will, trust, power of attorney, or other record) or in the provider’s terms of service.

If the user has not provided instructions using an online tool from the provider, or if the provider does not have an online tool for that purpose, the user’s instructions as expressed in a legal document will prevail, even if the provider’s terms of service conflict with those instructions.

Finally, if the user provides no other direction, the service provider’s terms of service will apply. If the terms of service do not address fiduciary access to users’ digital assets, the default rules of the Uniform Act will apply.

The default rules contained in the Uniform Act provide that a fiduciary service provider must provide a “catalogue of electronic communications sent or received by the user” and digital assets of the user, but not the content of any electronic communications.¹ (The catalogue is a log with “information that identifies each person with which a user has had an electronic communication, the date and time of the communication, and the electronic address of the person.”²) This section is intended to provide default access to the catalogue of electronic communications and to other digital assets not protected by federal privacy law.

In each case, however, the fiduciary must provide a copy of the relevant document to the service provider when requesting access. A service provider may comply with requests for disclosure of a deceased user’s digital assets by resetting the account’s password and permitting the fiduciary access to the account. Alternatively, the provider may provide a copy of the digital assets to the fiduciary.³

Effect on Terms of Service Agreements

With respect to a service provider’s terms of service agreement, the Uniform Act “does not change or impair a right of a custodian or a user under a terms-of-service agreement to access and use digital assets of the user.”⁴ In addition, “A fiduciary’s .?.?. access to digital assets may be modified or eliminated by a user, by federal law, or by a terms-of-service agreement if the user has not provided direction under Section 4.”⁵