When you die would you want your family members have access to your e-mails, text messages and the photos you keep stored in the cloud? Some say it’s important information to help a family settle an estate, while others call it a breach of privacy.
The Florida Fiduciary Access to Digital Assets Act would give your guardian or trustee access to your electronic accounts after you die that would let them use those accounts just like you do now.
“It’s becoming more and more necessary simply because the nature of our property is changing and the nature of our communications are all going online," say Ben Orzeske with the Uniform Law Commission. "When our banks asked us to go green and receive paperless statements, we then, the executor of the estate who has to handle those statements will need access to an email account in order to find that and settle the estate.”
Orzeske says his group wrote the original draft the act is based on. Rep. Jay Fant (R-Jacksonville) is he’s sponsoring the bill. He says he wants to ensure fiduciaries can do their jobs. But Yahoo Senior Director of Governmental Affairs, Bill Ashworth, says the measure would do much more than that.
“While consumers may expect their fiduciary to have access to letters under the bed or in the drawer, they may have very different privacy expectations such as their digital assets or email account,” Ashworth says
Ashworth says such legislation could lead to the exposure of secret information, such as a person’s membership in an Alcoholics Anonymous group. And he points out the secrets of more than just the deceased person are at risk.
“HB 313 guarantees litigation for Florida residents and compromises the privacy interests of not only the decedents, but the living who are parties to the decedent’s emails, texts, messages, instant messages and blog postings,” Ashworth says.
And Ashworth says that litigation will come because of a federal law, which protects the privacy of a person’s e-mails and stipulates online companies cannot share those e-mails without the direct permission of the e-mail account holder. Dan Sachs, with Facebook has similar concerns.
“Most of the items the bill calls digital assets are also the contents of communications protected by federal privacy law. The Federal law says the service provider can’t disclose contents of communications without the consent or authorization of the account holder or another party of the communication. And there’s tremendous liability for unlawful disclosure under that statute,” Sachs says.
And Saschs says that could cost companies millions of dollars. Under federal law companies can’t disclose the content of a communication, but officials say they can provide what is called front of the envelope information -- or information you might see on the front of the mail someone receives – like the date and who a person is communicating with. Then it’s up to the family member or other trustee to contact that entity to get more details.
But Fant argues his bill does not create a conflict with the federal law.
“It says the provider may divulge the contents of communication to an addressee or intended recipient of communication or an agent of an addressee,” Fant says.
The measure passed the House Civil Justice Committee Tuesday with lawmakers saying they hoped to see more efforts to work with stakeholders before the bill reaches the floor. Meanwhile, a similar measure in the Senate is awaiting a hearing in its second committee.
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