Death and Live Feeds: Privacy Protection in Fiduciary Access to Digital Assets

Abstract

In 2014, the Uniform Law Commission approved the Uniform Fiduciary Access to Digital Assets Act (UFADAA) for enactment by states. After an online user dies, the act gives her fiduciary broad access to her digital assets, such as email and social networking accounts, in the name of "asset neutrality" -- the idea that digital assets should be treated like similar physical assets for the purposes of estate administration. The application of such a concept to our online lives and deaths has significant implications for user privacy and relationships between users and internet service providers. Over 20 states have already introduced bills based on the UFADAA.

This Note argues that an asset neutral approach to digital assets is fundamentally flawed, particularly with respect to social networking and social media content. Crucially, digital assets are often linked to live, real-time feeds from other users’ accounts, and thus provide access to others’ digital assets. The Note proposes several changes to the UFADAA. Most importantly, in order to protect user privacy, fiduciary access should be limited to only the particular decedent’s digital assets and internet service providers should be required to implement this restriction.