In March, we updated you on the BBA’s endorsement, at the request of the Trusts and Estates Law Section, of the adoption of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) in the Commonwealth.
To briefly recap, RUFADAA was promulgated by the Uniform Law Commission in 2016 in response to a lack of guidance as to what happens to a person’s digital assets (think Facebook, Instagram, online banking) when they die or become incapacitated. Very few individuals leave clear direction on the handling of these assets and those companies in charge of the on-line accounts have varied and often difficult-to-locate policies, if they have any policies on the matter at all. RUFADAA helps to add clarity by creating a formal process to determine a fiduciary’s authority to access digital assets while also balancing privacy concerns and limiting unwarranted disclosure of private communications. Since its promulgation in 2015, at least 30 other states have adopted RUFADAA in some form. (Check out our previous blog post on this for a full refresher on the contents of RUFADAA.)
On Monday, the Joint Committee on the Judiciary (“the Committee”) heard testimony from three different panels on bills that deal with access to digital assets.
The Committee first heard testimony from the Ajemian siblings in support of, S.822, “An Act Relative to Access to a Decedent’s Electronic Mail Accounts,” sponsored by Senator Cynthia Stone Creem. As you’ll recall, the Ajemian siblings are parties to Ajemian v. Yahoo!, Inc., regarding the contents of an e-mail account established by their late brother. There, the Supreme Judicial Court is currently determining whether the federal Stored Communications Act (SCA), 18 U.S.C. § 2702, prohibits disclosure of the contents of a deceased e-mail account-holder’s account to the administrators of his or her estate. In that case, the Ajemian siblings, the administrators of their brother’s estate, argue, in part, that they should have access under an exception to the Act, as agents for the decedent.
S.822 applies only to e-mail accounts but allows greater access to those accounts than the requirements set forth in RUFADAA. The bill allows personal representatives to gain access to the contents of an e-mail account upon a notarized written request by the personal representative or an order of the probate court that has jurisdiction over the estate of the decedent. Upon receipt of the request, the service provider has 60 days to comply, and this requirement supersedes provisions in e-mail service provider contracts, terms and conditions, or privacy policy unless the provider can show “by clear and convincing evidence, that it offered opt-out language, separate and distinct from the standard agreement or terms of service, whereby the decedent affirmatively declined to have the decedents electronic mail account released after dead.”
Next up, representatives from Facebook and NetChoice testified in opposition to S.822 and in support of Senator Lesser’s S.885, “An Act Relative to the Privacy of a Decedent’s Electronic Communication” (and Representative Livingstone’s identical H.3083, “An Act for Uniform Fiduciary Access to Digital Assets”). These bills are largely the same of RUFADAA, except the language limits the definition of “fiduciary” to a personal representative, while RUFADAA would cover personal representatives, conservators, trustees, and agents acting under the power of attorney. Notably, the Facebook witness also stated that they would be completely comfortable with the adoption of the full RUFADAA language instead of the more narrow S.885 or H.3083. These witnesses opposed S.822 because of the broader access to accounts the bill allows, as they worry it will push them to violate privacy guarantees, put them in conflict with the federal SCA, and tie them up in litigation.
This brings us to the final panel, which instead of testifying in support of any of the current bills, called for adoption of the full RUFADAA language, even though it hasn’t yet been filed in Massachusetts. BBA Trusts and Estates Section Co-Chair Joe Bierwirth, of Hemenway & Barnes, testified on behalf of the BBA, alongside Colin Korzec, of U.S. Trust, and Marc Bloostein, of Ropes and Gray, on behalf of the Standing Committee on Massachusetts Legislation Relating to Wills, Trusts, Estates and Fiduciary Administration (“Standing Committee”).
Overall, the panel presented the reasons for adoption of the complete RUFADAA language, including the balance it strikes in allowing access while also protecting privacy, and the clarity and certainty it will offer for fiduciaries, digital account users, and digital account service providers. The witnesses also stressed the unified support this language has achieved, both nationally, with adoption by more and more states in rapid succession over the past two years, and locally, with the BBA, the Massachusetts Bar Association, and the Massachusetts Bankers Association having all officially endorsed the RUFADAA language. (The written testimony offered by the panel also included the Standing Committee’s Massachusetts-specific analysis of RUFADAA, complete with proposed edits to the ULC’s model language in order to ensure it complies with the Massachusetts General Laws).
One thing all witnesses agreed on is that this is an issue crying out for action from the Legislature, in order to provide some clarity to what is now quite a grey area. As always, we’ll keep you posted on RUFADAA throughout the legislative session!
In related news, the BBA isn’t just sticking with legislative testimony to get the word out about RUFADAA. You won’t want to miss our podcast featuring Trusts and Estates co-chairs, Joe Bierwirth and Andy Rothstein, of Goulston & Storrs.
—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association
