Digital Assets Revisited

A recent news story, on CBC and elsewhere, told of a woman whose son went missing for two years. When she found his body (in a morgue), she did not know why he died. She has been trying to get information about his social media accounts, in order to see if there was something particular on his mind that might explain his death.

She has not been very successful, especially with the US social media giants like Yahoo and Google. (She did get an order from a Canadian court that got her some information from Canadian sources.)

Question: should the law be changed to assist her and others in her position to get access to the information? The CBC article mentions the Uniform Law Conference’s Uniform Access to Digital Assets by Fiduciaries Act from 2016. To date only Saskatchewan has introduced legislation to enact the Uniform Act (Bill 176 in the current – 28th – session, downloadable from the Progress of Bills page of the SK Legislature.)

One clear issue: Ms Henry, the woman in the article, has no formal legal status to request information. She is the deceased person’s mother but is not his executor or estate trustee – nor does his estate probably justify the expense of her taking steps to be appointed as such. It is unlikely that social media companies or other custodians of digital assets should be disclosing digital information, much less conveying digital assets, to people who assert an interest, by blood or otherwise, without some kind of formal authority. ( As noted, she did get a Canadian court order.)

The CBC article refers to a power of attorney, though in this case a will with provisions on digital assets would have been more appropriate. (BTW this is not a new issue for the legal profession – not that this family had lawyers. Slaw.ca has had articles on the question in 2009 and 2012, and more since then.)

Some questions about the use of a power of attorney, not all dealt with in the Uniform Act (though it expressly applies to powers of attorney)(thanks to a private correspondent for the list…). I have suggested some answers. Feel free to disagree, or qualify, in the comments. (Or agree, of course!)

* How does such a PA fit with a PA for personal care and a PA for property? Is it part of ‘property’? (My answer: very probably)

* A bank will ask for a PA on the bank’s form. This complicates matters as the bank PA, and indeed all PA’s revoke all prior PAs. (JDG: Presumably the revocation of prior PAs is subject to express contra-indication – so ‘revokes all prior PAs except the one about digital assets…’ – if one cannot drop a digital asset clause into the bank form.)

* What is the utility of a digital PA? (JDG: the Uniform Act gives some good indications for scope and exceptions)

* Does such a PA create a further complication of revoking other PA’s for Property, Health Care and Bank PA ? (JDG: not if properly drafted, I would think)

* Under what statute is such a digital PA granted ( Powers of Attorney Act)? (JDG: yes, if the Uniform Act is not enacted. Note that Alberta’s relatively recent Estate Administration Act (2012) does provide coverage for digital assets, but for wills, not PAs. The policy counsel responsible for that statute led the ULCC’s work on the Uniform Act, not by coincidence.)

* Does such a digital PA incorporate by reference, or should it incorporate the fiduciary duty of the Attorney? (JDG: if done under the usual statute, the usual statutory duties would apply.)

* Does the Digital PA survive the death of the donor? (JDG: not if PAs generally don’t. That is why one should have a will with appropriate provisions.)

There is interesting discussion in the comments to the CBC article about the tension between privacy rights – especially the rights of people who corresponded with the deceased – and the interests of the family of the deceased to know what was going on. Privacy advocates managed to get the U.S. Fiduciary Access to Digital Assets Act of 2014 severely cut back in 2015 because of the presumed impact on such privacy interests. My own impression is that they did not have much idea of what powers an estate trustee usually has with respect to information on paper.

Views? Should all provinces enact the Uniform Act? If they did, will it help people like Ms Henry in the news story, or will she still be limited by privacy rights – not to mention that the holders of most of the information she wanted are in the US and are disinclined to help foreigners without a US court order – with some justification because of US law, though that could support a separate debate on a number of fronts.

The US companies mention the Stored Communications Act (SCA) of 1986 as a barrier to disclosure – they certainly brought it up many times at the US uniform law meetings on the FADAA. Some uniform law commissioners thought some state should try a test case to see if a court would really interpret ‘consent’ not to include a state-law-based directive under a will (or power of attorney) made under the FADAA. But it is hard to engineer that ahead of time…

it is very unlikely that the SCA could be amended in the current political climate in the US, especially fo a reform that might seem to be reducing privacy rights.

The SCA expressly allows for class actions, and the Googles and Facebooks and Yahoos of the world (mainly them, of course) don’t want to expose themselves to the expense and nuisance of class actions by the correspondents of the deceased or incapable people whose information has been turned over to fiduciaries.

Even if they win, it’s expensive, especially for companies that provide their social media services for “free”. Yes, I know they profit from reselling our personal information, but it’s a hard calculation to set off the profits from anyone’s PII and the costs of litigation that they are not guaranteed to win, in a country known worldwide for extravagant jury awards bearing no relation to actual harm.

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