When I first wrote about Delaware’s digital assets law a couple of years ago, it was a much simpler issue. It was an effort spearheaded by the Uniform Law Commission, an organization of lawmakers and politicians aiming to standardize or create “model legislation” for states to adopt nationwide. The initial bill was passed in 2014, a first for state governments in the U.S.
The bill basically revolved around naming a “fiduciary” — someone you know and trust to divvy up your belongings when you die — but for your online accounts and so-called “digital assets.” Estate lawyers all over the First State were buzzing about this issue. Former Rep. Darryl Scott (D-Dover) sponsored the bill and it was approved. Then the focus shifted from estate administration to data access and privacy.
Months went by, companies like Google and Facebook took notice and got upset because they decided this new law violated their privacy laws. So NetChoice, an e-commerce trade association, that Google, Yahoo, Facebook and friends are members of, lobbied for the model legislation to be changed.
Here’s the beef: One side thinks there should be legal guidance for who gets access to your accounts, while the other (NetChoice) believes that no one should get access to these accounts. One side believes that it’s necessary to find out as much information as possible about what the decedent (dead person) wanted to be done with their stuff, while the other side believes that privacy should be upheld beyond the grave.
So what does this mean for Delaware? Well, Delaware is still operating on the original legislation, which means that if someone passes away, the state can name a fiduciary, which is usually a next of kin. This differs from federal law, 1986’s Electronic Communication Privacy Act.
One side sees value in preserving privacy: “In the past two years, one of the things we have seen is service providers beginning to offer choice mechanisms,” explained Carl Szabo, NetChoice’s senior policy counsel. “Google is offering inactivity account manager [tools] and Facebook [is offering] legacy accounts. There’s also a new company called Directive Communication Systems that works with citizens and trusts and estate attorneys to create a directive in their will, that says, When I die talk to DCS about what happens to my digital accounts.”
The other side sees value in accessing digital accounts to help administer the decedent’s will: “The new model law is much more burdensome to individuals and it requires you to get a court order, most times people will hire lawyers,” said Kristen Bennett, estate and trust attorney at Wilmington’s Gawthrop Greenwood, PC. “The Delaware law does not require the court order, it basically gives the fiduciary the same access to digital assets just like all other assets. It puts digital assets on par with all other assets that are within the fiduciary’s control.”
Now you have it, both sides of the issue. Which side are you on?-30-