By: Kyle M. Johnson
The Florida legislature recently passed legislation designed to enable individuals to effectively plan for the management of their digital assets in the event of incapacity or death. The Florida Fiduciary Access to Digital Assets Act, which went into effect on July 1, 2016, has two main purposes: (1) vest fiduciaries (e.g., personal representatives, trustees, and attorneys-in-fact) with the authority to access, control, or copy digital assets and accounts and (2) provide custodians of digital assets and electronic communications the legal authority needed to interact with fiduciaries of their users while granting custodians immunity from liability for acts or omissions performed in good faith compliance with the Act.
A quick review of some vocabulary may help. A “digital asset” is an electronic record in which an individual (the “user”) has a right or interest. § 740.002(9), Fla. Stat. This term does not include an underlying asset or liability unless the asset or liability is itself an electronic record. Id. A “custodian” is the entity that carries, maintains, processes, receives, or stores a digital asset of a user (e.g., Facebook, Google, LinkedIn, etc.). § 740.002(7), Fla. Stat. An “online tool” is an electronic service provided by a custodian which allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person (e.g., Facebook’s Legacy Contact or Google’s Inactive Account Manager). § 740.002(16), Fla. Stat.
The Act divides digital assets into two categories and applies different default rules for the disclosure of each type of asset. Generally, a user must expressly authorize a fiduciary (in a will, trust, power of attorney, online tool, or other record) to be […]