How digital asset access instructions work
Key takeaway
In Minnesota, for example, online disclosure directions override contrary estate document instructions if users can modify or delete those directions at all times. Estate documents may allow or prohibit disclosure when no qualifying online direction was given or no tool was provided. Federal law and applicable provider terms can limit access, and other states differ.
Online directions can allow or prohibit disclosure
In Minnesota, for example, a user may direct a custodian to disclose to a designated recipient, or not disclose, some or all digital assets, including electronic communication contents.
The online direction takes priority over contrary instructions in a will, trust, power of attorney or other record only if the tool allows modification or deletion of the direction at all times. Other states differ.
Estate documents address the absence of an online direction
In Minnesota, for example, if the user gave no qualifying online direction or the custodian provided no tool, a will, trust, power of attorney or other record may allow or prohibit fiduciary disclosure.
That direction may cover some or all digital assets, including electronic communication contents. Other states differ.
Provider terms have a conditional role
In Minnesota, for example, either statutory direction overrides a contrary provider provision only when that provision requires no affirmative, distinct assent separate from assent to the terms of service.
If the user gave no statutory disclosure direction, provider terms may modify or eliminate access. User directions and federal law can also limit access. Other states differ.
Federal disclosure limits apply separately
Federal law prohibits public electronic communication services from knowingly disclosing communication contents held in electronic storage by the service, subject to statutory exceptions.
For public remote computing services, protection covers contents carried or maintained on behalf of a subscriber or customer and received by electronic transmission from them, including contents created by processing communications electronically transmitted from them.
Those contents must be held solely for storage or processing, with the provider unauthorized to access them to provide other services.
Exceptions include disclosure to an addressee, intended recipient or their agent. Lawful consent from the originator, addressee or intended recipient may also permit disclosure, as may subscriber consent for a remote computing service.
Other statutory exceptions exist. A state fiduciary appointment or state court order does not itself establish that a federal exception is satisfied.
Federal law separately permits public electronic communication and remote computing services to disclose subscriber or customer records other than protected communication contents to a person other than a governmental entity.
That permission does not compel disclosure or transfer ownership.
State enactments determine the applicable rules
The Uniform Law Commission drafts uniform laws for states to consider and enact. After final Commission approval, uniform acts go to state legislatures for consideration and enactment.
Two related terms
Digital asset. In Minnesota, for example, this is an electronic record in which an individual has a right or interest, excluding an underlying asset or liability unless it is itself an electronic record. Other states differ.
Online tool. In Minnesota, for example, this is a custodian provided electronic service for directing disclosure or nondisclosure of digital assets to another person through an agreement distinct from the terms of service. Other states differ.
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Common questions
Can an online account instruction override a will?
Yes, in Minnesota, for example, an online disclosure direction overrides a contrary will instruction if the tool lets the user modify or delete that direction at all times. Other states differ.
Do provider terms control access to digital assets?
Yes, in Minnesota, for example, provider terms may modify or eliminate access if the user gave no statutory disclosure direction.
An online or estate record direction under the statute overrides a contrary provider provision only if that provision requires no affirmative, distinct assent separate from assent to the terms of service.
User directions and federal law can also limit access. Other states differ.
Does an access designation give someone additional property rights?
No, in Minnesota, for example, the digital access statute gives a fiduciary or designated recipient no new or expanded rights beyond those held by the user. Other states differ.