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Washington State Enacts Law Governing Access to a Person’s “Digital Assets”

Posted Wednesday, June 29, 2016 by Michael A. Larson and Pivotal Law Group

screen locked When a person dies or becomes incapacitated, they may have assets that need to be located, accessed, and managed. Traditionally, those assets could include things like houses, cars, bank accounts, other personal property, etc. The person formally named, selected, or appointed to manage these assets is known as a “fiduciary.”

With the increase of computer and internet use, people have acquired more and more “digital assets” – which has in turn raised more and more questions about how fiduciaries may gain access to these assets. Some people have experienced “horror stories” where a loved one passed away, and they wanted to access that person’s pictures, videos, etc., but the company controlling that information wouldn’t allow access, citing to their Terms of Service.

To address these questions, on March 31, 2016, Governor Jay Inslee signed into law Senate Bill 5029, also known as the Revised Uniform Fiduciary Access to Digital Assets Act. Washington is one of only ten states that have enacted such a law.

The Digital Assets Act gives fiduciaries the legal authority to manage digital assets the same way they manage tangible assets and financial accounts. It also gives custodians of those assets (think: Amazon, Google, Facebook, Instagram, etc.) legal authority to deal with fiduciaries of their users, while respecting the user’s reasonable expectation of privacy. The Act does not grant access to family members or friends, unless that person is also a fiduciary.

The Act allows a user to direct who may access their digital assets and which assets they may access. The user may make that direction using an online tool provided by the custodian, or by other written document such as a will, trust, or power of attorney. This direction overrides any terms-of-service agreements to the contrary.

The fiduciary must prove they have the right to access a user’s digital assets. They must do so by making a request for access in writing, and also providing various items depending on the circumstances. Generally, these items serve to prove the user had digital assets with the custodian (e.g. a username or unique identifier, and evidence linking that account to the user), the user authorized the fiduciary to access those assets (e.g. the will, trust, or power of attorney, unless the designation was made by an online tool provided by the custodian), and the circumstances allowing access have occurred (e.g. the death certificate, letters of appointment, letters of guardianship, or a certification the document granting authority is in effect).

Once the fiduciary provides the required items, the custodian must comply with the fiduciary’s request within sixty (60) days. If they do not, the fiduciary may apply to the court for an order directing the custodian to comply.

Although the Act requires custodians of digital assets to provide access to the fiduciary, they have the discretion to disclose those assets in a number of ways: (a) full access to the user’s account, (b) partial access sufficient to perform the fiduciary’s designated tasks, or (c) copies of the digital assets the user could have otherwise accessed. The custodian may also assess a reasonable administrative charge.

Furthermore, the custodian may refuse a request if it requires segregation of assets, and that segregation would impose an undue burden on the custodian. This would come into play if a user grants partial rather than full access, meaning the custodian must separate the assets that are allowed to be accessed from those that are not.

In managing the assets, the fiduciary is charged with the duties of care, loyalty, and confidentiality. They may not impersonate the user, and must otherwise abide by any applicable terms-of-service agreement.

In an age where so much of our lives are online, the Digital Assets Act helps give users control over who may access that information, and peace of mind that the custodians of that information must abide by their documented wishes.

The Digital Assets Act is effective on June 9, 2016.

Photo credit: Yuri Samoilov, used under the Creative Commons license