On August 12, Delaware Governor Jack Markell enacted the nation’s first law that covers access to digital accounts of the deceased. The Delaware statute, which is modeled after the Uniform Fiduciary Access to Digital Assets Act, gives the deceased’s executors, or fiduciaries, “control over any and all rights in digital assets and digital accounts of an account holder, to the extent permitted under applicable state or federal law or regulations or any end user license agreement.”
The new law also requires the custodian of digital accounts, such as Facebook or Google to comply with the fiduciary’s valid written request for access to the account within 30 days of the request. If access is not granted, the fiduciary may obtain a court order directing compliance. A custodian acting in good faith is immune from liability if they grant access without actual knowledge regarding the invalidity of a purported request.
In July, a digital industry coalition that included Yahoo! and Google sent the Governor a letter urging him to veto the bill. The letter said that the proposed law “overrides user privacy choices [and] sets the privacy of Delaware residents lower than the federal standard” because the Electronic Communications Privacy Act (ECPA) prevents providers of online services from sharing the contents of communications in civil court proceedings without obtaining consent from the subscriber or sender.
In signing the bill, Gov. Markell said, “As we conduct more of our professional and personal business online, we must also change our laws to match the reality of how people live in the 21st Century. This legislation will help our laws keep pace with changing technology and forms of communication.”
Written by Bruce Sarkisian, Associate, Privacy & Data Security | Alston & Bird LLP