Until June 1, 2016, no Florida law existed that governed a fiduciary’s access to digital assets. A fiduciary is a personal representative (executor), a trustee. a guardian or an agent who is serving pursuant to a durable power of attorney.
The new Florida Fiduciary Access to Digital Assets Act “FFADAA” gives these fiduciaries certain authority to access, control, or copy digital assets and accounts. “Digital assets” include electronically stored material such as any information on a computer and other digital devices; the content uploaded onto websites, ranging from photos to documents; and the rights in digital property, such as domain names or digital entitlements associated with online games. Both a catalogue and the content of an electronic communication are included in the definition of “digital assets.” The term “digital assets” does not include the underlying asset or liability unless the asset or liability is itself an electronic record.
The Florida Fiduciary Access to Digital Assets Act is intended to govern a fiduciary’s right to access digital information. Family members or friends may also attempt to seek such access to digital assets, but, unless they are fiduciaries, they are subject to other laws and are not covered by this new Florida law.
Normally a term of service agreement that is signed when the digital account is opened will control the distribution of the information concerning the digital account. However, this new Florida statute states that a user’s direction in a will, trust, power of attorney or other record will prevail over the Term of Service Agreement regarding the disclosure of digital information to a fiduciary. However, if a user provides no direction in a will, trust, power of attorney or other record, the Term of Service Agreement will govern a fiduciary’s access to digital information.
This new law states that a custodian may charge a reasonable administrative service fee for the cost of disclosing requested information to a fiduciary regarding a user’s digital assets. A custodian has no duty to disclose previously deleted digital assets. Also, a custodian has three options for disclosing digital assets. One alternative is for the custodian to allow the fiduciary to access the user’s account. Another method is for the custodian to permit the fiduciary to partially access the user’s account if such limited access is sufficient to perform the necessary tasks. Another method of compliance is that the custodian may provide the fiduciary with a “data dump” of all digital assets in the account. A request for some, but not all, of a user’s digital assets can be declined by the custodian if segregation is unduly burdensome. In such event, either party may petition the court for further instructions.
The following is a synopsis of the rights and limitations of a certain fiduciaries to discover information about digital assets:
- Estate. A personal representative (executor) is not permitted to access the contents of a decedents’ electronic communications unless the deceased gave his written consent I his or her will or a court order is obtained. However, a personal representative is permitted to have access to all of the deceased’s other digital assets unless the deceased user prohibited disclosure in his or her will.
- Durable Power of Attorney. An agent serving pursuant to a durable power of attorney is permitted access the contents of a principal’s electronic communications if authority is expressly granted by the principal. It is important to understand that the agent under a durable power of attorney does have the right over the principal’s digital assets and records other than the contents of the principal’s electronic communications unless the power of attorney states otherwise.
- Trust. A trustee who established the trust may access any digital assets including the content of electronic communications. When the trustee is not the original user, that trustee may access the content of the trust unless it is an electronic communication. However, the person who created the trust may give the trustee permission to access electronic communications.
- Guardianship. A Guardian is not permitted to access the contents of a ward’s electronic communications without the consent of the ward. In addition, a guardian is not authorized to access information about the ward’s digital assets unless a court order is issued that gives the guardian authority over the digital assets of the ward. However, this does not limit the guardian’s authority over the use of the actual assets such as bank accounts
Some steps a person can take to help preserve his or her digital assets if he or she should become incapacitated or die are as follows:
- Inventory your digital assets. Create a list of your digital assets, that include all hardware and flash drives, all software (including Quicken®, Turbo Tax®, and other programs where you may store financial information), your online document and photo storage sites, social media accounts, blogs, online shopping accounts (wherever your credit card information may be stored), and online licenses (newspapers and other subscription services). Also, state in your will that if you have prepared a memorandum with instructions regarding your “Digital Assets” and their access, handling, distribution, and disposition, then you direct your Personal Representative and beneficiaries to follow your instructions as outlined in that memorandum.
- Identify the person who is most qualified to take control of your digital assets after your death or incapacity. Name a qualified digital agent in your durable power of attorney or and an agent in your will to manage your digital assets when you die.
- Provide information. List passwords and PIN numbers in a safe place known to your agent and your personal representative.
- Update your estate plan. Make sure that your will provides clear instructions regarding your digital assets and electronic communications. State if you want your letters and e-mails deleted.
Also, state that this authorization is to be construed as your lawful consent under the Fiduciary Access to Digital Assets Act, the Electronic Communications Privacy Act (including the Stored Communications Act thereunder); the Computer Fraud and Abuse Act; and any other applicable federal or state data privacy law or criminal law.