Wednesday, August 6, 2014
David Horton (University of California, Davis, School of Law) recently published an article entitled, The Stored Communications Act and Digital Assets, Vanderbilt Law Review, Vol. 67 (2014). Provided below is the abstract from SSRN:
The story has become all too familiar. Someone dies, and her loved ones request the contents of her text, email, or social media accounts. Perhaps they wish to preserve this vibrant electronic slice of the decedent’s life. Perhaps they are compelled in their grieving to sift through the minutiae of the decedent’s final days. Or perhaps they are merely trying to fulfill their duty as trustee, executor, or administrator to pay the decedent’s bills and inventory her property. However, the decedent’s Internet Service Provider (“ISP”) — be it Facebook, Yahoo!, or Microsoft — refuses to comply.
As Naomi Cahn explains in her outstanding contribution to the Vanderbilt Law Review’s Symposium on the Role of Federal Law in Private Wealth Transfer, these ISPs are afraid of a byzantine federal statute from 1986: the Stored Communications Act (“SCA”). Section 2701 of the SCA criminalizes unauthorized access to electronic communications: a seemingly nasty glitch for fiduciaries attempting to marshal a decedent’s digital assets. Section 2702 bars ISPs from disclosing a customer’s private data without her “lawful consent.” Citing the fact that the SCA predates the rise of email — let alone the phenomenon of a valuable Twitter account — Professor Cahn argues that the statute should not govern fiduciaries. Alternatively, assuming that the SCA does apply, Professor Cahn discusses various ways around this obstacle, including the Uniform Law Commission’s draft Fiduciary Access to Digital Assets Act (“FADA”), which would clarify that fiduciaries generally enjoy the “authorization”’ and “lawful consent” necessary to acquire a decedent’s online accounts.
This short invited reply takes a different route to the same destination. It begins by offering a reading of the SCA that diverges slightly from Professor Cahn’s. However, it uses that discussion to echo her critique of the SCA and bolster the case for the FADA.