Big Internet Companies Oppose FADA Legislation — Really!?!

In July I discussed and lauded the recent adoption of the Uniform Fiduciary Access To Digital Assets (FADA) Act. FADA is not a law in itself, but is intended to provide uniform model legislation for states to enact to vest fiduciaries (executor, trustee, agent and guardian) with the authority to access digital assets and accounts in order to allow fiduciaries to obtain information necessary to carry out fiduciary duties. FADA took several years to negotiate and develop and was the product of collaboration among diverse interest groups.

What I didn’t then realize is that FADA has some noisy opponents — specifically major internet service providers (ISP) like Yahoo, Google and Facebook. The thrust of their stated objections seem to involve: (1) (supposed) concern over the privacy of a decedent’s data; and (2) FADA’s effect of overriding the ISP’s terms-of-service (TOS) agreement.

Subsequent to FADA’s adoption, Delaware became the first state to enact the model legislation. As Delaware considered passage, NetChoice, an eCommerce trade group that counts Google, Yahoo and AOL as members, unsuccessfully urged the Delaware governor to reject the legislation. NetChoice also posted a blog entry — Death and Social Media: Don’t Strip Delaware Citizens of their Privacy.

More recently, Bill Ashworth, senior legal director for Yahoo Global Public Policy, published a blog post — Your Digital Will: Your Choice (posted September 14, 2014) — outlining Yahoo’s opposition to FADA. (Also see PCWorld — Yahoo slams new ‘digital will’ law, says users have privacy when they die).

As I read through Yahoo’s objections, I kept thinking — REALLY!?!  Really, Yahoo!?!

“At Yahoo, we take our users’ privacy seriously. That’s why we’re concerned with the draft legislation recently approved by the Uniform Law Commission (ULC), which would automatically give access to a person’s online content — including emails, photos, and instant messages — to the trustee of their estate at the time of their death. As our colleagues at NetChoice phrased it: “…the ULC model sets the privacy default at zero.“

Really, Yahoo — REALLY!?!

I appreciate your concern for my privacy. I might even accept that concern as genuine if it was extended to privacy during my life and not only after my death (Yahoo scans private e-mails to target ads and detect copyright violations). Also, there will be an executor of my estate and there will be a trustee of my trust — but there is no trustee of my estate. Really.

“In order to protect our users’ privacy, we honor the initial agreement that a user made with us. When an individual signs up for a Yahoo account, they agree to our Terms of Service, which outlines that neither their account nor the contents of their private communications are transferrable (sic) at the time of death.”

Really, Yahoo — REALLY!?!

The initial agreement that a user made with us? Really? You mean the 5,776 word TOS conditions displayed in 8 point font, which lawyers don’t even read, followed by a ‘I Accept’ button? The one that individuals are required to accept, and can’t negotiate or opt-out from? Really. How kind to ‘honor’ a one-sided ‘agreement’ that you created.

“…the ULC’s proposal is based on the faulty presumption that the decedent would have wanted the trustee to have access to his or her communications.”

Really, Yahoo — REALLY!?!

And the presumption is faulty because…? Some sort of poll? Anything at all?

I frequently talk to clients about including provisions in estate planning documents authorizing fiduciary access to digital assets. I’ve yet to have anyone express to me that they wanted to restrict their designated fiduciary’s ability to access their digital assets during estate administration. I’m sure some have that point-of-view and that should be absolutely honored, but my experience tells me that is the exception and not the rule, which leads to…

“We believe that account holders and individuals—not legislators—should determine what happens to a person’s digital archives at the time of their death.”

Really, Yahoo — REALLY!?!

That’s good, because the law allows just that (did the author bother to actually read FADA before slamming it!?). It expressly permits individuals to “provide otherwise” (restrict access) in the terms of the governing instrument (will or trust). Individuals are able to expressly limit or eliminate access to their digital archives after death — FADA does not override this.

It seems to me that you (Yahoo) believe that you (Yahoo) — not account holders — should determine what happens to a person’s digital archives after death. After all, as it stands now the final decision is made by you in the TOS, not by the individual who can’t opt-out or expressly provide otherwise, either in the TOS or in their will or trust. Really.

I don’t mean to suggest that privacy shouldn’t be a consideration or that individuals should not be able to restrict post-death access to accounts, but in the absence of such expressed intent, shouldn’t the necessary and orderly administration of estates carry the day?

Why should fiduciary access to digital files generally be handled any differently from fiduciary access to non-digital files — things such as filing cabinets in a decedent’s home, postal mail or a safe deposit box? In many ways, the e-mail inbox is really just the modern version of a filing cabinet or a shoebox.

I would think that ISP’s should have two primary concerns here:

1. With laws in flux, how do we know which law applies, and how do we reasonably track and comply with the different state laws? Of course, the response to this concern should not be to urge each state’s legislature and governor to change or reject the proposal (which might result in an unworkable patchwork of mismatched laws), but instead to ask all states to enact legislation quickly and uniformly.

2. There does not seem to be a clear ending date for fiduciary access — surely it can’t be “forever.” As the internet ages, at some point the number of deceased users will outnumber the living ones. How long does a custodian need to retain the digital archives of a decedent? It seems to me that a firm date — perhaps 2 years — after which a custodian may delete all files, would be appropriate.

We will see how this plays out. My sense is that FADA has momentum behind it (a FADA fait accompli?), but I’m sure that the opposition of ‘Big Internet’ will be heard.

What do you think — does Yahoo, Google, etc. have a point? Or, is FADA sound public policy? Leave your thoughts in the comments.