who can access your e-mail? (status of laws relating to digital assets)

July 6, 2016 - Posted by: admin - In category:

taxes - No Responses

At the moment, you likely don’t want anyone (other than perhaps your significant other) to have access your e-mail, social media, online bank account, i-tunes and/or any of a number of other online accounts.

If something were to happen to your parent, your spouse, your child or other family member, you might need to access that person’s e-mail or other digital asset.  Under the laws that now exist in some states, you would not be able to gain lawful access.  Enter the new legislation called the RUFADAA…

Surely you have heard of the RUFADAA, right? Just in case you are not familiar (and, frankly, most of us are not going to be familiar), it stands for the Revised Uniform Fiduciary Access to Digital Assets Act.  Nice name, right? Maybe they should have picked something like the “updated law on electronic stuff” or something like that…:)  In any event, the obnoxiously long name notwithstanding, this new law is making its way across the nation, state by state, and it will affect you and your family.

This new law, already enacted by 15 states and introduced in the Utah legislature in each of the past 2 years (though not yet passed), provides a mechanism and framework for estates, trusts, agents acting under powers of attorney, guardian and conservators (in other words, authorized persons) to have access to e-mail and other digital assets of others in proper circumstances.  Under current law in Utah (since the RUFADAA has not yet become law in Utah) and in many other states, someone whom you have designated via Will, Trust, Power of Attorney or otherwise, is not permitted to read your e-mails.  In fact, the current law states that your e-mail account, social media account and other digital assets are not things over which you have final authority–rather, these things are governed by terms of service agreements of the applicable digital asset company (such as Google, Facebook, Twitter, Apple, etc.)  Such terms of service agreements (also known as “TOS”) provide that nobody other than you can be given access to your account and, further (although somewhat inexplicably), you do not have the right to grant such access to others.  Pause for a minute and consider the “logic” of such things–you are fully able to give access to your bank account, your safety deposit box and any other type of “physical” account (which, at least in theory could be worth millions and millions of dollars), but you are not currently permitted to give access to your digital asset account to another person.  Make sense to you?  Thankfully, the RUFADAA is about to change this nonsensical legal landscape.

For residents of the 15 states which have already adopted this new legislation, the RUFADAA gives priority to the account owner/user’s express instructions and provides a way for such owner/user to grant access and control over such digital assets through estate planning and other legal papers. Granted, we are mostly talking about “worst case” types of things. And yet, we also know that accidents happen every day and people experience unforeseen events.  We also know that each of us will one day need someone to take over our affairs for us, either because of disability or death. In this regard, this is a conversation that should be had with aged parents and others right away, so that upon their disability or death, you are able to access their e-mail, manage their auto-payments and other electronic financial matters. Given that most of us now handle many aspects of our lives electronically–from cable bills, banking, investing, shopping, and many other such matters–the management and access to our digital assets is a relevant topic for just about every person.

When will the RUFADAA become the law in the State of Utah? That is a question to ask your local legislative representative. However, given that this has been proposed and debated in each of the past 2 years and given that it appears to be only a matter of time before it becomes the law in the remaining other states where it has not yet been adopted, it would seem that this will become the law also in Utah in the near future.  Once it has become part of Utah law (or if you live in a state where it has already become the law), you will still need to take steps to provide for planning and authorization for your designated person to have access to your digital accounts, now or in the future.

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