State Lawmakers Have Options to Protect Your Digital Legacy
Written by Alethea Lange
As state legislatures prepare for another season, they will be able to choose among several models for updating estate law while preserving users’ control of their digital legacies. This administrative question has been caught up in larger questions about our relationship with technology and the difficulty of anticipating the future of innovation. Rules for accessing digital accounts after death are nontrivial as they hold huge troves of information about our habits, preferences, and connections to others. The narratives of our lives can be assembled through this data, and everyone should have control over how their stories are told. CDT has some advice for users looking to establish their own digital legacies, and we have advocated for legislation that prioritizes user control.
In fact, CDT played a major role in crafting two of the models that are available this year, and this week the Uniform Law Commission has unveiled a new model that is both privacy protecting and administrable. This is the result of a year of negotiation and represents a hard-won compromise among key stakeholders.
The Uniform Law Commission (ULC), a nonprofit that provides state lawmakers with model bills “to bring clarity and stability to critical areas of state statutory law,” worked with technology companies, trust and estate lawyers, and privacy advocates to update the model legislation they released last year, the Uniform Access to Digital Assets Act (UFADAA). Both technology companies and privacy advocates criticized that proposal for providing overly broad access to fiduciaries, and the bill was stalled after being introduced in many states across the country. The new model, conveniently titled the Revised Uniform Access to Digital Assets Act (RUFADAA), addresses several of the objections raised to the last model and substantially shifted in its default treatment of digital assets.
The updated model makes several meaningful improvements, including:
Protecting Communications by Default: The revised bill requires the consent of the user before granting access to contents of digital communications, reversing the default of the original bill. Our digital communications are vast, searchable archives of many of our fleeting thoughts, feelings, and preferences and may include photos or video shared with a private, specific audience. They should not be treated the same as physically stored letters. Users expect that they will be private and take steps to ensure as much; they are stored by third parties behind password-protected accounts that may or may not be linked to a person’s true identify. The treatment of these assets under RUFADAA is a more accurate reflection of the technology, and more respectful of user control.
Prioritizing selections made through online tools: RUFADAA gives priority to wishes expressed through tools like Google’s Inactive Account Manager and Facebook’s Digital Legacy Contact, even over wills and other testamentary documents. CDT supports this prioritization. The tremendous diversity of online accounts will only increase with time. Providers are in the best position to communicate what options are available directly to users based on the type of content they store. Prioritizing these tools incentivizes companies to create them and encourage users to share their preferences directly. Additionally, while we may only interact with a testamentary instrument a few times in our lives, we interact with our online accounts on a reasonably regular basis and are more likely to keep our settings up to date than our wills. That said, there are some conditions: the setting must be able to be changed (not a one-time election) and it must be distinct from the terms of service agreement. Speaking of which…
Terms of Service Are Given the Lowest Priority: The original model completely negated any provision in the terms of service that prohibited access; however, the updated bill appropriately recognizes the role of terms of service agreements. While incentivizing users to express their desires directly (through provider tools or testamentary instruments), RUFADAA’s recognition of terms of service acknowledges that users may have chosen a particular provider or service based on the expectations that are rooted in terms of service.
Earlier this year, the trade association NetChoice published a model bill titled the “Privacy Expectation Afterlife and Choices Act” (PEAC). This bill differs in some respects from RUFADAA, but maintains a similarly robust privacy-preserving default of limiting access unless a user gives permission or a court deems it necessary for the administration of the estate. This model is limited in scope, only addressing personal representatives and not trusts or conservatorships.
CDT worked with the authors of both the RUFADAA and the PEAC model, and as a result both contain the basic privacy protections that were lacking in previous attempts. The ULC will promote its model across the country this legislative season, and has prepared a helpful comparison chart to help lawmakers understand the differences between available models. Both of these models put control in the hands of users and provide protections against privacy harms. We encourage state lawmakers to keep privacy and digital dignity in mind as they decide what legislation to introduce this year.