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Before the advent of technology, privacy rights to tangible assets left behind by a decedent were virtually non-existent. Any photographs, letters, and other intimate objects became the property of the heirs. Nowadays, with the rise of technology these previously tangible assets have been largely converted into a digital format, which has introduced previously unimaginable legal issues in the realm of probate law. Service providers such as Yahoo! and Facebook heavily restrict the alienation of the content contained in their users’ profiles, especially upon the user’s death. These providers claim that a deceased user’s privacy rights allow them to enforce these restrictions. But why should the mere format of the same “thing” allow for such conflicting outcomes? What is the difference between an e-mail and a letter, or a physical photograph and one on a site like Flicker or Facebook? Should the law consider them different upon the death of the asset owner or should it treat them the same and transfer them to the decedent’s heirs?

The legal community has been struggling with these questions, trying to develop legislation that will allow the transfer of digital assets, or at least access to them, upon the death of their owner.  In July 2014, the Uniform Law Commission finalized and released its model statute, Uniform Fiduciary Access to Digital Assets Act (“UFADAA”).  UFADAA allows a fiduciary to “step into the shoes” of the deceased asset owner to allow for the administration of his estate. As long as the decedent has not taken affirmative action to restrict access to these assets, any boilerplate provisions contained in terms of service agreements or their equivalents will be void. This has created uproar in the digital property and electronic communications industry. Companies like Yahoo! and Facebook argue that the new legislation violates decedents’ privacy rights. This prompts the question: What privacy rights should be afforded to deceased persons?

Again, a few decades ago the answer with relation to photographs and letters was a simple one. A decedent did not have any privacy rights to these items and they were transferred to their heirs. So, why should their digital equivalents afford decedents more rights? Many people, myself included, believe that they shouldn’t. There is no difference between a letter and an e-mail. Therefore, one should not receive greater protection than the other. Allowing an estate administrator to access a decedent’s account may provide them with information of assets not previously discovered. For example, many individuals “opt out” of receiving paper statements for bank accounts and credit cards and, instead, receive an email notification. Without access to the decedent’s account these types of assets may not be discovered for a long time, if at all. This overrides any privacy interests the decedent may have. As such, emails and other communications should be treated just like letters by the law and should be accessible by fiduciaries, estate administrators, and heirs upon the death of the account owner.

Barbara Miranda