Digital Asset Law Breaking News: Personal Representative May Be Given Access to Decedent’s Email

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By Sasha A. Klein

On October 16, 2017, the Supreme Judicial Court of Massachusetts ruled favorably on a Personal Representative’s access to a deceased user’s online accounts and digital property (Ajeman v. Yahoo). This is the first reported case with respect to access to digital assets by a fiduciary.

The conundrum: Email are part of a deceased user’s estate.  But a personal representative (aka executor) can’t read them without violating Federal privacy or anti-hacking law.  The Ajeman case is the first to permit access and will empower fiduciaries throughout the U.S.

10 Things You Need to Know

  1. This is the first case in the country to answer the specific question of “lawful consent” by a fiduciary under the Stored Communications Act (SCA).*
  2. SCA = protection of privacy.
  3. Privacy protections = significant obstacle for personal representatives trying to gain access to a deceased users online accounts and digital property, including and more specifically emails.
  4. When the SCA applies, the online company (think Yahoo, Google, Facebook, Microsoft…)is prohibited from disclosing the contents of electronic communications or files to anyone (this includes family members and fiduciaries) other than the user.
  5. SCA Exceptions = online company mayvoluntarily disclose such information, but IS NOT required.
  6. Voluntary disclosure is restricted unless a statutory exception under the SCA applies.**
  7. Enter the Lawful Consent Exception to the SCA.***
  8. The text of the SCA does not explicitly answer whether a fiduciary of a deceased user may grant “lawful consent” on behalf of such deceased user in order for the online company to voluntarily disclose account contents. This is the first case to answer that question. This case answered that question by holding – a personal representative of a deceased user may provide lawful consent on the deceased user’s behalf in order for the online company to release the contents of a deceased user’s email account.
  9. Note – Ajeman means that the “lawful consent” exception to the SCA applies to personal representatives, and thus while the online company is not requiredto disclose the contents, the Court held that it may
  10. Enter RUFADAA (Revised Uniform Fiduciary Access to Digital Assets Act).  RUFADAA provides state law procedures for fiduciaries to request disclosure from online companies, including obtaining a court order if necessary.  38 states have a digital asset act (36 enacted RUFADAA). Massachusetts, whose law applied in the Ajeman, has neither. RUFADAA works best when certain “magic”words are in the relevant estate planning documents – Will, Trust and Power of Attorney.

 

*SCA is found at U.S.C. §§2701 – 2712

**§2702(b) – Exceptions to the SCA.

***§2702(b)(3) Lawful consent exception.

 

Sasha A. Klein focuses on private wealth services at Ward Damon and counsels affluent individuals and families in personal tax and estate planning.  She advises on structuring wealth to achieve client goals including protecting against risk and minimizing income, estate, gift and generation-skipping transfer taxes.  She also advises the firm’s fiduciary litigators on tax, trust and estate matters.  For questions about your digital assets, contact Sasha at Sasha@warddamon.com or call 561-842-3000.

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