A.7869/S.5775 would amend the New York State Estates, Powers and Trusts Law to give a “fiduciary” – an individual granted authority to administer the assets of a deceased person – access and control over all “digital assets, digital accounts or digital devices which are property of the estate or trust” at the time of a person’s death.
This means that every email; social media account and its contents; health care account; online store account; and “any other digital asset which currently exists or may subsequently exist;” would be controlled by the decedent’s fiduciary in the absence of a will to the contrary.
This bill does not sufficiently protect the wishes and privacy rights of those who have died, nor does it protect the privacy of surviving individuals who communicated with the decedent while he or she was alive. The NYCLU urges lawmakers to vote against this bill.
Unless a person has already designated what is to be done with these assets upon his or her death, the bill sets the default at fiduciary access and control; that is, unless an individual spends the time and money to specify in a will that digital assets are private, those digital records are automatically disclosed (in full) to the decedent’s estate and representative.
Very few people have a traditional will (let alone a will that provides for disposition of digital assets); the default position for disposition of digital assets, then, is quite important – not only for the decedent, but for anyone with whom the decedent communicated while alive.
What’s more, the bill’s grant of access and control to a fiduciary trumps any arrangements with a company hosting digital assets that an individual may have made while alive.
A.7869/S.5775 provides that in the absence of a will specifically detailing who may gain access to digital assets when you die, and contrary to any contract or other arrangement you may have made with a social medial platform, an email provider or the like, every digital file you ever possessed – that is, everything you ever e-mailed, uploaded, or saved in digital form – will become open and available to your fiduciary (most likely a family member) when you die.
In the attached letter, the ACLU, along with the Electronic Frontier Foundation, the Center for Democracy and Technology, and Consumer Action, explain that laws like A.7869/S.5775 (which are modeled after the Uniform Law Commission’s Uniform Fiduciary Access to Digital Assets Act, or UFADAA) improperly sets the default at fiduciary access and control, not at consumer privacy. They suggest, and we agree, that the default should be that digital records remain private unless the decedent specifically authorizes otherwise.
As an alternative, these groups, and the NYCLU, recommend the Privacy Expectation Afterlife and Choices Act (“PEAC”) as a model bill. This model legislation is available at http://netchoice.org/library/privacyexpectation-afterlife-choices-act-peac/.
We urge lawmakers to reject A.7869/S.5775 in favor of legislation that allows individuals to choose whether and how to allow access to digital assets after their death.