Delaware has become the first state in the union to enact a wide-ranging law that oversees the transfer of citizens’ digital ownership and access — iTunes and Twitter accounts alike — to the relatives of the deceased.
The new law reads:
Except as otherwise provided by a governing instrument or court order, a fiduciary may exercise control over any and all rights in digital assets and digital accounts of an account holder, to the extent permitted under applicable state or federal law or regulations or any end user license agreement.
A fiduciary with authority over digital assets or digital accounts of an account holder under this chapter shall have the same access as the account holder, and is deemed to (i) have the lawful consent of the account holder and (ii) be an authorized user under all applicable state and federal law and regulations and any end user license agreement.
The Delaware legislature writes in its synopsis that “Recognizing that an increasing percentage of people’s lives are being conducted online and that this has posed challenges after a person dies or becomes incapacitated, this Act specifically authorizes fiduciaries to access and control the digital assets and digital accounts of an incapacitated person, principal under a personal power of attorney, decedents or settlors, and beneficiaries of trusts.”
In a statement provided to Ars Technica, a spokesperson for the Delaware governor’s office said that the law would not take into account where a particular company, like Google, is incorporated, but that the person in question filed their will in that state.
In the case of Apple its 800 million iTunes accounts, however, the company’s license agreement appears to contradict the new law:
You agree to comply with all local, state, federal, and national laws, statutes, ordinances, and regulations that apply to your use of the iTunes Service. All transactions on the iTunes Service are governed by California law, without giving effect to its conflict of law provisions. Your use of the iTunes Service may also be subject to other laws. You expressly agree that exclusive jurisdiction for any claim or dispute with Apple or relating in any way to your use of the iTunes Service resides in the courts in the State of California. Risk of loss and title for all electronically delivered transactions pass to the purchaser in California upon electronic transmission to the recipient.
Asked about this seeming legal loggerhead, Jim Halpert, director of the State Privacy and Security Coalition (SPSC) and a partner with law firm DLA Piper, tells Billboard: “These are me-first sorts of provisions — the question is does a court in California decide to honor this? It may defer to it, it might not. Another question would be: Does federal law even allow this?” The SPSC is opposed to the lew legislation, in part due to possible privacy violations of those who had communicated with a deceased person.
Google refused to comment for this report, but pointed out that the company maintains a utility, its Inactive Account Manager, which assists users in planning for the inevitable. The utility allows users to specify that access to certain account information be given to pre-selected persons upon a user’s death.
Apple did not immediately respond to a request for comment by Billboard.