Access to Digital Assets Florida’s New Law for Fiduciaries: What Are Digital Assets and Why Are They Relevant?

Digital assets, like social media, email accounts, online banking, and digital currency, have value and need to be protected. Florida has a new law that lets certain people, like guardians, access these assets. Federal laws and terms-of-service agreements also protect digital assets from unauthorized access. The SCA makes it a crime to access digital communication services without permission. It also covers what service providers can and cannot disclose. The law doesn’t apply to private email services like those used by schools or employers. In most cases, anything created at work belongs to the employer. When someone becomes unable to access their online accounts, it can be hard for their family or legal representatives to get into those accounts. Privacy laws and agreements with the companies that provide the online services make it difficult for anyone else to access the accounts. There are laws that make it illegal to access someone else’s computer or online accounts without permission, and companies can also have rules about who can access the accounts. This can make it hard for family members or legal representatives to get information from the person’s online accounts after they die or become unable to use them. In Florida, there are laws in place to protect digital assets and allow someone like a trustee or executor of an estate to access them. The Florida Fiduciary Access to Digital Assets Act, passed in 2016, gives fiduciaries the authority to manage digital assets and electronic communications, while also respecting the privacy of the original account holder. This law helps to balance the needs of both the fiduciary and the online service providers. This law lets people decide who can see their online stuff after they die. It says that if someone is allowed to look at your digital things, like emails and social media, they’re allowed to do it under the law. They can do the same things you could do when you were alive, and it’s okay with the companies that run those services. The act introduces the concept of an “online tool” for directing access to digital assets. This tool allows a person to give directions for who can access their online accounts after they pass away. For example, Facebook and Google have their own versions of this tool. These directions will override any conflicting directions in a person’s will, trust, or power of attorney. If there are no specific directions, then a general online access agreement will control who can access the digital assets. The act also explains how different types of people, like someone with power of attorney, can access a person’s online accounts. This is important because federal privacy laws can prevent unauthorized access to online accounts. If someone gives you the power to make decisions for them online, you can access their digital accounts like online banking and pictures stored in the cloud. But you can only do this if they said so in the power of attorney. You can’t read their messages or emails unless they specifically let you. And if a company won’t let you access the account, they have to if you show them the paper that says you can. A guardian can access a ward’s digital photos and email account with permission, but they can only access the ward’s bank account statements if they have specific authorization from the court. If someone dies and they have digital assets like online bank statements, photos in a cloud account, or emails, their personal representative (like a family member or lawyer handling their estate) can’t access their emails without permission or a court order. They can access other digital assets, unless the person who died said they couldn’t. The company that holds the emails might need a court order to let the personal representative see them. The person in charge of D’s stuff after they die can access D’s online bank statements and photos, unless D said they didn’t want that or a court says no. If the accounts are password-protected, the bank and photo service have to give access to the person in charge when they ask, following the law. The person in charge can also get a list of emails D sent or got on their email account. But they can’t see the actual messages unless D said it was okay, or a court says it’s okay. The bank can release electronic communication records if it’s not a remote computing service. A trustee of a trust can access digital assets and electronic communications if they have permission from the trust or the court, unless the user or trust documents say otherwise. If a trustee is not the original user, they may still access digital assets and communications with permission from the trust, unless prohibited by the user, trust documents, or the court. If someone named T inherits or is given access to someone else’s online accounts, like a bank account, email, or online game, the companies that run those accounts have to give T access if they ask for it. This is because the law says T has the right to see and use the digital things that belonged to the other person. The companies might charge a fee for this, and they don’t have to show deleted things or give everything if it’s too hard. But if there’s a problem, T can ask a court to help. The Florida Fiduciary Access to Digital Assets Act gives digital asset users the ability to specify who can access their online accounts after they pass away. If users don’t provide this information, the law has default rules for who can manage their digital assets. This law helps ensure that people’s online accounts and digital information are handled properly when they die. These are references to specific laws in Florida, called statutes, related to wills, trusts, and estates. They are part of the Real Property, Probate and Trust Law Section. S. Dresden Brunner is a lawyer who practices in this area and has received awards for her work. The column is submitted on behalf of this section of lawyers. The Florida Bar has a goal to teach its members about duty and service to the public and improve the justice system.

Source: https://www.floridabar.org/the-florida-bar-journal/access-to-digital-assets-floridas-new-law-for-fiduciaries-what-are-digital-assets-and-why-are-they-relevant/