California is among the recent states to take action on clearing up access to obtaining the digital information of a deceased person, according to a recent article in The Recorder’s “Digital Assets Bill Gets Governor's Signature.” The new law is a stricter version of model legislation, the Revised Uniform Fiduciary Access to Digital Assets Act.
Assembly Bill 691 creates a multi-level approach when designating who has the authority to access the information.
The law will default initially to any intent expressed by the user via an online tool. If there is none, fiduciaries and data-holding companies would consider any direction left in a will. Finally, if the decedent provides no guidance in either of those two locations, the individual site’s terms of service will be controlling.
The 2014 guidance was updated last year. It has been used as a template for similar laws in 11 states. Digital asset legislation has been introduced in more than 18 other states, according to the Legislature and the National Conference of State Legislatures.
The bill received strong support from social media and search companies such as Facebook, Google, and Yahoo, along with other data-holding companies and tech trade associations.
AB 691 and companion legislation, which was also signed by Brown last week, offer liability protections for companies that comply in good faith with the data-handling provisions—the only exceptions are in cases of gross negligence or willful misconduct.
However, AB 691 was opposed by civil liberties and privacy groups. The detractors believed the broad grant of immunity is overreaching. The bill’s opponents also argued that an online tool should not be given precedence over a decedent's will, power of attorney or other legal documents.
Reference: The Recorder (Sept. 26, 2016) “Digital Assets Bill Gets Governor's Signature”