The "PEAC" of digital estate legislation in the United States: should states "like" that?

• Author: Costello, Matthew W.
• Position: Privacy Expectation Afterlife and Choices Act

"Millions of us live whole facets of our lives in the virtual world, facets that will be left behind, and potentially unavailable to executors and trustees. An increasing number of people, all of whom will die one day, maintain Facebook identities, online bank accounts, libraries of downloaded music, personal photo archives and email. Tying up digital loose ends can be harder than tidying up paper, and the prospect of millions of digital deaths has raised legal questions that remain largely unanswered." (1)

1. INTRODUCTION

   In an increasingly digital society, individuals store information online and occupy a social media presence more than ever. (2) Whether through Facebook or other social networking platforms, email accounts, online banking, music providers, or other digital outlets, society occupies and possesses vast digital property. (3) Many types of digital property are replacing--or have already replaced--outdated types of tangible personal property. (4) Further, unlike our friends and family, whose lives must, unfortunately, come to a halt, digital property can exist into perpetuity. (5) Because laws addressing digital property implications upon death cannot keep pace with society's rapid technological revolution, digital estate law across the United States remains complicated and inconsistent. (6)

   Presently, the majority of states prohibit family members and heirs from accessing information that a decedent stores online. (7) Further, privacy agreements between account holders and Internet Service Providers (ISPs) narrowly restrict access to digital accounts, creating obstacles for family members attempting to access such accounts following the death of a loved one. (8) In response, states have begun addressing the ambiguities regarding treatment of digital property by implementing legislation that governs digital assets. (9) Most notably, in 2014, Delaware became the first state to pass broad, comprehensive legislation regulating the access and use of digital assets upon death. (10)

   Delaware's Fiduciary Access to Digital Assets and Digital Accounts Act (FADADAA) grants fiduciaries broad authority over the digital accounts or property of a decedent in the same way that fiduciaries inherit physical assets. (11) Based on suggested legislation from the Uniform Law Commission's Uniform Fiduciary Access to Digital Assets Act (UFADAA), citizens of Delaware are among the first to obtain inheritance rights as fiduciaries, which expand beyond the mere use or access to digital property. (12) Simultaneously, however, as states begin to progress in the regulation of digital assets, federal law requirements create an additional layer of complication regarding the treatment of digital estates. (13) Legal commentators frequently cite federal legislation governing digital assets, including the Stored Communications Act (SCA) and Computer Fraud and Abuse Act (CFAA), as obstacles preventing ISPs from divulging digital account content to individuals other than the deceased account holder. (14) Thus, the coexistence of federal and state law governing access to digital property continues to muddy the water in this area of law, raising potential preemption and conflict of law issues. (15)

   This Note explores the legal implications of recent digital assets legislation, suggested model legislation, and the future for digital estate planning generally. (16) First, this Note delineates the current state of federal law governing digital assets. (17) Additionally, this Note considers the consequences of Terms of Service (TOS) contracts in relation to the preservation of and access to digital account contents. (18) Next, this Note tracks the history and development of state legislation concerning postmortem digital assets. (19) Further, this Note surveys the development and implementation of suggested model legislation. (20)

   This Note argues that federal and state law can coexist in this arena, as recent state law is complementary, not incompatible, with federal laws governing digital communications. (21) Further, this Note emphasizes the unique privacy concerns relevant to digital asset management, arguing sweeping state legislation that categorically divulges private account contents neglects the important privacy interests associated with such digital property. (22) Additionally, this Note highlights the importance of deferring to the decedent account holder's intent when determining whether fiduciary access or control over account content is appropriate after death. (23) This Note discusses areas of strength in current model legislation, namely the Privacy Expectation Afterlife and Choices Act (PEAC), which provides a useful example for states seeking to adopt comprehensive legislation recognizing the intimate and private nature of online property, even after death. (24) This Note concludes suggesting a court ruling is necessary to clarify the law concerning postmortem digital assets. (25)

2. HISTORY

   1. Federal Legislation Governing Digital Assets

      1. The SCA and CFAA

         Currently, federal legislation governing digital assets consists of two federal laws: the SCA and CFAA. (26) In 1986, Congress passed the Electronic Communications Privacy Act (ECPA), which included the SCA. (27) Recognizing the Fourth Amendment's failure to keep pace with the privacy implications of the Internet Age, Congress enacted the SCA in an attempt to fill a void in modern privacy protections for Internet communications. (28) Congress sought to prevent ISPs from exposing certain private communications to various entities and individuals. (29) Most notably, the SCA prohibits granting access or providing disclosure of electronic account content to individuals without the proper authorization. (30) More specifically, the SCA's prohibitions on the disclosure of electronic communications narrowly apply to remote computing services and electronic communication services. (31) Further, the SCA includes exceptions that account for situations where the disclosure of communications is appropriate, such as through the originator's legal consent or court order. (32) Another relevant federal provision, the CFAA, provides context--and simultaneous complication--for fiduciaries seeking to assert control over digital assets. (33) The CFAA governs fraudulent and other related criminal conduct related to computers, punishing willful access to obtain information from a computer without proper authorization. (34)

         Courts reviewing the SCA have interpreted it to apply to web hosting and social networking websites. (35) In Viacom International Inc. v. Youtube Inc., (36) a federal district court considered whether the plaintiff could compel the defendant to produce "private" videos, inquiring whether the ECPA barred disclosure. (37) The court held that the ECPA prohibited defendants from disclosing private videos while emphasizing that the user intentionally limited the public's access through only affording specific individuals access. (38) In prohibiting disclosure of the private videos under the ECPA, the court reasoned that as an entity providing remote computing services to the public, YouTube is prohibited from "knowingly divulg[ing]" their subscribers' stored communication to any person or entity. (39)

         Additionally, in Bower v. Bower, (40) a federal district court considered the SCA's application to the compelled disclosure of emails in response to civil discovery requests. (41) The court held that the SCA's prohibition on disclosure of contents to third parties barred the sought production at issue. (42) Importantly, the court emphasized the privacy interests at stake, which tipped the scale toward disallowing disclosure. (43)

      2. SCA Application with Other Laws

         The Supremacy Clause of the Constitution provides, "[T]he Laws of the United States ... shall be the supreme Law of the Land." (44) Courts interpret this clause to require federal law to trump state law when the laws are in direct conflict. (45) Although acknowledging certain powers as within the state's legitimate police powers, the Court recognizes several types of preemption: express preemption, field preemption, conflict preemption, and complete preemption. (46) The Court acknowledges conflict preemption in situations where state law "irreconcilably] conflict[s]" with federal law, positioning state law as an obstruction to Congress's achievement of legislative goals. (47)

         In Telecommunications Regulatory Board of Puerto Rico v. CTIA--The Wireless Ass 'n, (48) the First Circuit Court of Appeals considered a Puerto Rican law that authorized telephone companies to obtain information regarding prepaid cellphone holders. (49) The Puerto Rican law, the Registry Act, required telephone companies to provide the Puerto Rican government with various private details about their phone customers. (50) The court held the SCA preempted the application of Puerto Rico's law. (51) The First Circuit expressed concern that the Registry Act required what the SCA expressly prohibited, effectively preempting the Registry Act. (52)

   2. Implications of Private Terms of Service Contracts

      TOS contracts between decedent account holders and social media platforms create an additional layer of complication and confusion regarding the treatment of digital assets after death. (53) Specifically, many TOS contracts forbid fiduciary access and restrict transferring an account or the account's private contents after death. (54) Although social media providers almost universally err on the side of caution in the treatment of digital assets postmortem, because each service agreement's terms often vary, it fosters a lack of uniformity. (55) Some social media platforms provide that sharing your password for a digital account constitutes a TOS violation. (56) Other agreements require that an account holder agrees that access to an account is nontransferable, which empowers social media providers to terminate account contents upon the decedent...