Californians
now have a right to an
internet will of sorts, thanks to Governor
Jerry Brown’s approval this weekend of Assembly Bill 691, authored by
Assemblyman Ian Calderon. And the timing couldn’t be better.
Today’s internet users
lead robust digital lives. From paying bills, to talking with family, to
purchasing products, the internet has become an all-encompassing,
password-protected repository for the countless communications and individual
decisions integral to our lives in the information age.
But what happens to
all of that information when the user passes away? Who gets access to those
accounts, and how much detail should be made available to those attempting to
settle the deceased’s affairs?
That’s where AB 691
comes in. Championed by Assemblyman Calderon, the new law creates a
framework through which fiduciaries can access the online information they need
to settle a deceased internet user’s estate, while ensuring that Californians
still make the ultimate decision about what happens to their online private
lives after they die.
Current laws that
govern what information internet providers can disclose, and to whom, do not
necessarily account for death. The resulting white space has created a
confusing and, at times, distressing regulatory question mark. AB 691
helps answer the question by establishing a balanced framework that will serve
the interests of internet users and probate practitioners.
Under the new law,
Californians will be able to dictate which of their electronic communications
can be made available to their fiduciaries in the event of their death, and
which cannot. This process, which mirrors similar statutes adopted in
other states around the country, respects both the user’s privacy and the needs
of those administering the user’s digital assets.
Some have argued that
the contents of online accounts should be treated the same way as a box of
letters discovered after a person dies, and thus be made totally available to a
fiduciary. However, unlike physical letters – which require an
affirmative step to store and where there is an expectation they will likely be
read upon discovery – emails and online activity records are stored by default,
require action to delete, and involve a third-party custodian with
responsibilities under federal law to protect the privacy of those communications.
Additionally, most
people expect those electronic communications to remain private once they’ve
passed away. In fact, 70 percent of Americans say their private online
communications and photos should remain private after they die, unless they give
prior consent for others to gain access.
Meanwhile, it is
important to recognize the valuable role that these online records can play in
efforts to settle a person’s affairs. As “going paperless” becomes more
popular, the ability to gain a comprehensive understanding of someone’s
financial obligations is growing increasingly difficult without information
only accessible in password-protected accounts.
Under AB 691, a person
can choose to use an online tool – an option increasingly offered by internet
companies – or a traditional will to designate what information can be
disclosed upon their passing. Fiduciaries are then able to receive that
information by providing certain documentation, such as evidence of the
deceased user’s wishes and of the fiduciaries status as representative of the
decedent.
One thing is for sure:
our lives today can be hectic and fast-paced, and nowhere more so than on the
internet. With so much going on in our digital lives, it is easy to forget
about what happens with all of that information down the road. AB 691
provides answers to some of these complicated questions in a responsible and
forward-thinking way, and we applaud both Governor Brown and Assemblyman
Calderon for their leadership on the issue.
