After January 1, 2015, individuals whose wills are governed by Delaware law can have their digital assets and digital accounts accessed and controlled by their personal representatives of their estates, courtesy of a new Delaware law. Modeled on the uniform model Fiduciary Access to Digital Assets Act, the Delaware law vests the decedent’s personal representative with the same authority as the owner of the digital assets. Upon request of the personal representative for access to, transfer of, copy of, or destruction of the digital asset, the online service provider/web site has 60 days to respond to such a request. If there is no response, the personal representative is authorized to obtain a court order.
This procedure differs from current procedures that social media sites have adopted, as we have previously written. The Delaware law may also raise issues under the Stored Communications Act portion of the Electronic Communications Privacy Act. In general, the Stored Communications Act does not permit service providers to release accounts in civil dispute matters without the owner’s consent. Note that the Delaware law provides an indemnity to service providers that comply with the state law.
With respect to companies, the Delaware law excludes those accounts: “Digital assets and digital accounts of an employer regularly used by an employee in the usual course of business are not subject to the provisions of this chapter.”
How does your company handle its digital accounts when the persons running them are no longer employed, for whatever reason?
Sue Ross (susan.ross@nortonrosefulbright.com / +1 212 318 3280) is a lawyer in Norton Rose Fulbright’s US intellectual property practice.
