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Last month, we brought you news out of Delaware, the first state to pass into law the Uniform Fiduciary Access to Digital Assets Act (UFADAA), which allows estate administrators access to testators' email, social media accounts, and the like. The problem this law resolved was social media companies' refusal to grant anyone access to a dead person's accounts unless they got served with a court order.
Last week, Yahoo came out on its Global Public Policy Tumblr against the law. In arguing against the Digital Assets Act, does Yahoo mischaracterize the law? (Was that a leading question?)
Of course, being more like a press release than a legal memo, Yahoo's statement works only if you believe the mischaracterizations it contains. Yahoo claims that the law would "automatically give access to a person's online content ... to the trustee of their estate at the time of their death."
A quick scan of the UFADAA reveals that's not true. I looked up "automatic" in the dictionary and found a bunch of definitions, all of which centered around something happening "without deliberate thought or effort" -- which happens to be the opposite of how the UFADAA works. The UFADAA requires the estate administrator to provide a certified copy of the probate or trust instrument, along with the request, and the information custodian (Facebook, Yahoo, whoever) can ask for more information if they're suspicious. So it's not true to say that the law "automatically" operates at the time of the person's death.
OK, maybe that's just splitting hairs. "We believe that account holders and individuals -- not legislators -- should determine what happens to a person's digital archives at the time of their death," Yahoo contends. Good point. So good, in fact, that the UFADAA agrees with you on that one.
The UFADAA allows someone to specify in her will that she doesn't want anyone else to access her digital assets after they die. Of course, what Yahoo objects to is the presumption that, absent a request to the contrary, people will want their online photos and Facebook posts delivered into the hands of a third party.
NetChoice, an Internet company trade group, also grossly mischaracterizes the UFADAA, suggesting that "a court-appointed executor [can] counter your express wishes about how your online accounts are handled when you die." The law actually doesn't allow that: If your "express wish" is either that you do or don't want your digital accounts to be handed over to an executor when you die, then the UFADAA can't override that wish. The only conceivable concern about intent here is that, in the absence of an "express wish," the UFADAA presumes that the information can be handed over.
Yahoo is also deeply concerned about privacy. (Though not so deeply concerned that it was beyond giving information about Chinese political dissidents to Chinese authorities. At least that person is out of jail now.) The law "does not ensure the privacy of sensitive or confidential information shared by the decedent or third parties," Yahoo says. That's a fair point, actually. But it's sort of misleading in that no law ensures that level of privacy once you're dead. An executor can, for example, rummage through the contents of a decedent's safety deposit box irrespective of what "sensitive" or "private" stuff might be in there. Why is a social media account different?
Yahoo is up in arms about this, but seems to mischaracterize the argument either as one about complete access or no access. That's not what the law is about or what it says. Yahoo also doesn't appear to have an ethical dilemma with complying with a court order for exactly the same information.
Perhaps Yahoo is just upset about the time and money that will be required to field these requests. If so, it should just be honest and say so. Or at least make better arguments.
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