Frank S. Warner is a practicing lawyer in Ogden. Through From the Community, he shares information about issues affecting senior citizens and their families, including wills, trusts, powers of attorney, probate, guardianships, nursing home medicaid eligibility and other matters.
How much of your life have you now stored digitally on Facebook, Snapfish, Dropbox, iTunes, Flickr or the hundreds of other sites where you might store your digital assets?
If you were to become incapacitated or die, who could access those photographs, songs, letters or blogs? And who owns them?
Could anyone access your online accounts?
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The answer to that question is contained in the agreement you entered into with each of those sites when you signed up. You know, that agreement you accepted by clicking the little box that indicates you accept the terms of that long contract written in legalese nobody ever reads. And why read it — you can either accept, or put the photos back in the shoebox and stay off Facebook. As you have undoubtedly learned over the years, those agreements are written for the benefit of one party, and it isn’t you.
Of those popular sites mentioned, Snapfish was launched over 16 years ago in 1999. The others mentioned were first launched no later than 2008. Until very recently, the hundreds of sites we’ve entrusted with our treasures have dictated the disposition of your property in their one-sided agreements. Most have simply not wanted to deal with the issue and provided for the simplest of solutions. In a nutshell, that solution in most cases has been that no one else can gain access and the account dies with you.
Enter the Uniform Law Commission (ULC). The ULC is made up of more than 350 lawyers, judges, law professors and lawyer-legislators from every state. Commissioners are appointed by their states to draft and promote enactment of uniform laws that are designed to solve problems common to all the states. After receiving the ULC’s seal of approval, a uniform act is recommended for adoption by the legislatures of every state. Some of the many uniform laws adopted by Utah include the Uniform Commercial Code, the Uniform Probate Code and the Uniform Partnership Act.
Put 350 lawyers together, and things don’t happen very fast. Two and a half years ago — on July 16, 2014, to be precise — the Uniform Law Commission finally approved the Uniform Fiduciary Access to Digital Assets Act. Only a group of lawyers could come up with a name like that. But don’t despair — this group of lawyers made life a lot easier by giving the proposed law a simple acronym: UFADAA. Really?
I’m going to shorten the acronym for purposes of this article by referring to it as “DAA” for Digital Assets Act. Within a year of its original approval in 2015, DAA was amended to its present form. DAA has a profound affect on the question of who owns all that stuff you store in the cloud. It has been enacted into law in 20 states and has been introduced in six more, including Utah.
Utah State Rep. V. Lowry Snow from Saint George and Sen. Lyle W. Hillyard from Logan both serve on the Uniform Law Commission. They introduced DAA in the Utah State Legislature last year. It passed the House on March 7, but didn’t make it through the Senate before time ran out on March 10. Rep. Snow will reintroduce the act in the House this session as HB0013. Sen. Hillyard is expected to manage it through the Senate.
The best summary of DAA is perhaps stated by its description on the ULC website: “A fiduciary is a person appointed to manage the property of another person, subject to strict duties to act in the other person’s best interest. Common types of fiduciaries include executors of a decedent’s estate, trustees, conservators and agents under a power of attorney. This act extends the traditional power of a fiduciary to manage tangible property to include management of a person’s digital assets. The act allows fiduciaries to manage digital property like computer files, web domains and virtual currency, but restricts a fiduciary’s access to electronic communications such as email, text messages and social media accounts unless the original user consented in a will, trust, power of attorney or other record.”
So the answer to the original question is that currently, the agreement you have with each of your online accounts dictates what happens to your digital assets when you become incapacitated or die. But if the Uniform Fiduciary Access to Digital Assets Act is adopted by the Legislature, you have the opportunity to dictate future access to and ownership of those assets.
Be sure that your estate plan includes a consideration of your wishes regarding all of your digital assets.
The information in this story is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in or accessible through this story without seeking appropriate legal or other professional advice.