Berks County Bar Association The Berks Barrister Winter 2020-21 - 25

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Agreement " is an agreement which controls the relationship
between the User and the Custodian. An " Online Tool " is defined
as " an electronic service provided by a Custodian which allows
the User in an agreement distinct from the [Terms-of-Service
Agreement] to provide direction for disclosure or nondisclosure
of digital assets to a third person. " 20 Pa.C.S.A.§3902. If the
User may modify or delete a direction at all times on an Online
Tool, then that direction overrides a contrary direction in that
User's will, trust, power of attorney or other record (each, a
" User Direction Document " ). If the User has not set out a
direction in such an Online Tool or the Custodian does not
provide an Online Tool, then the User " may, in [a User Direction
Document], allow or prohibit disclosure to a [Fiduciary] of
some or all of the [User's] digital assets, including the content
of electronic communications sent or received by the [User]. " 20
Pa.C.S.A.§3904(b). Further, a User's direction in an Online Tool
or a User Direction Document " overrides a contrary provision in a
[Terms-of-Service Agreement] which does not require the [User]
to act affirmatively and distinctly from the [User's] assent to the
terms of service. " 20 Pa.C.S.A.§3904(c).
The Act provides state rules for access within the limits
allowed by existing federal law. The Electronic Communications
Privacy Act of 1986 ( " ECPA " ) is a codification of federal statutes
that protects wire, oral and electronic communications while
those communications are being made, are in transit, and when
they are stored on computers. Covered are email, telephone
conversations and data stored electronically. The EPCA includes
the Stored Communications Act, 18 U.S.C.§§ 2701-2712. The
structure and content of the RUFADAA, and consequently the
Act, are drafted by reference to the defined terms and content of
the ECPA. Online Tools and Terms-of-Service Agreements are
supposed to be drafted to respect the duties of Custodians in the
ECPA, particularly nondisclosure provisions in 18 U.S.C.§2702.
RUFADAA addresses the limited subject matter of fiduciary
access. As the NCC states, " [ RUFADAA] gives states precise,
comprehensive, and easily accessible guidance on [Fiduciaries']
ability to access the records of a decedent, protected person,
principal or a trust. " Revised Uniform Fiduciary Access to Digital
Assets Act (2015), National Conference of Commissioners of
Uniform State Laws, page 2.
Accordingly, the Act clearly states its limits. First, the Act
" does not change or impair a right of a [Custodian or a [User]
under a [Terms-of-Service Agreement] to access and use
digital assets of a [User]. " 20 Pa.C.S.A.§3905(a). Second, the
Act " does not give a [Fiduciary] or designated recipient any
new or expanded rights other than those held by the [User] for
whom or for whose estate the [Fiduciary] acts or represents. "
20 Pa.C.S.A.§3905(b). Third, a [Fiduciary's] access to digital
assets may be modified or eliminated by a [User], Federal
law, or a [Terms-of-Service Agreement] if the [User] has

not provided direction in a [User Direction Document]. " 20
Pa.C.S.A.§3905(c).
How can a Fiduciary with authority over digital assets
cause the Custodian to disclose those assets to the Fiduciary?
The Custodian must disclose to the personal representative
of the estate of a deceased User the content of an electronic
communication sent or received by the User if the Fiduciary has
authority by court order or a User Direction Document and gives
the Custodian: (1) a written request for disclosure; (2) a certified
copy of the death certificate of the User; (3) a certified copy of
the letters testamentary or letters of administration; (4) a copy of
the User Direction Document (unless the direction is contained
in an Online Tool); and (5) if requested by the Custodian, (a) the
unique account identifier assigned by the Custodian, (b) evidence
linking the account to the User, or (c) certain findings of a court.
20 Pa.C.S.A.§3907.
Sometimes, a Fiduciary needs to see a list of communications
and digital assets to understand what might be available to
manage and administer. How can a Fiduciary obtain a catalogue
of electronic communications sent or received by the User and any
digital assets other than the content of electronic communications
of the User (the " List " )? Unless the User prohibited disclosure
of digital assets or the court directs otherwise, a Custodian must
deliver to the Fiduciary such a List if the Fiduciary presents to
the Custodian the same materials as with a request for electronic
communications, except that the Custodian may also request
an affidavit that the digital assets are reasonably necessary for
the administration of the estate. 20 Pa.C.S.A.§3908(a). The
personal representative may file with the Orphans Court certain
documents and an affidavit to meet some of the findings that
could be sought by the Custodian. 20 Pa.C.S.A.§3908(b).
How can a Fiduciary under a power of attorney ( " Agent " )
compel the Custodian to disclose electronic communications
sent or received by a User other than by direction of the User
or a court? Such an Agent must deliver to the Custodian: (1) a
written request for disclosure; (2) an original or copy of the power
of attorney granting the Agent authority over the electronic
communications; (3) a certificate by the Agent that the power of
attorney is in effect; and (4) if requested by the Custodian, (a)
the unique account identifier assigned by the Custodian, or (b)
evidence linking the account to the User. 20 Pa.C.S.A.§3909.
How can the Agent compel the Custodian to disclose any
digital assets other than electronic communications unless
otherwise ordered by court, directed by the User or provided by
the power of attorney? The Agent must provide to the Custodian
the same items as for electronic communications, but the power
of attorney or copy presented must give " the [Agent] specific
authority over the digital assets or general authority to act on
behalf of the [User]. " 20 Pa.C.S.A.§3910.

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