August 20, 2014
Delaware just became the first state to pass a law that allows social media accounts to be inherited, according to the Law and Disorder blog. The use of social media has rapidly expanded in the U.S. and its effects on the legal industry are growing. Social media accounts can directly affect law firms, in-house legal departments and attorney's clients in countless ways. In fact, Delaware added another reason for lawyers to pay close attention to social media accounts linked to their clients.
What the new law does
Delaware Gov. Jack Markell signed into law HB 345, the Fiduciary Access to Digital Assets and Digital Accounts Act in August, Law and Disorder blog reported. The act gives heirs and executors authority to take control over a decedent's digital account or device, including social media profiles for sites like Facebook and Twitter.
The new law specifically says:
"A fiduciary with authority over digital assets or digital accounts of an account holder under this chapter shall have the same access as the account holder, and is deemed to (i) have the lawful consent of the account holder and (ii) be an authorized user under all applicable state and federal law and regulations and any end user license agreement."
Now, in Delaware, digital data doesn't die along with the user. It may seem odd, but the act gives heirs and executors rights of digital content that are similar to the rights they have over physical assets.
Opposition to the law
Not everyone is a fan of Delaware's new stance on the inheritance of social media accounts. Jim Halpert, an attorney for DLA Piper and the director of the State Privacy and Security Coalition, which works with Google, Yahoo, Facebook and other organizations, stated he opposed the new law. Halpert points out the act doesn't take into account the privacy of third parties who may have communicated with the decedent.
"This would include highly confidential communications to decedents from third parties who are still alive -patients of deceased doctors, psychiatrists, and clergy, for example - who would be very surprised that an executor is reviewing the communications," said Halpert. "The law may well create a lot of confusion and false expectations because, as the law itself acknowledges, federal law may prohibit disclosing contents of communications."
Will other states follow?
Delaware got the idea for the act from the nonprofit group, the Uniform Law Commission, which has been lobbying states to enact its Uniform Fiduciary Access to Digital Assets Act (UFADAA). Delaware's law is not identical, but it's the first law to be based off the UFADAA.
Other states haven't ignored the issue of digital assets in an estate. Some jurisdictions, like Idaho and Nevada have created laws or regulations regarding these assets. However, none of the provisions have been as broad or all-encompassing as Delaware's act.