Changes in Virginia Law Relating to Digital Assets

By Jessica A. Hayes, Esq.

After your death, who may access records relating to your e-mail; your Facebook, Twitter, and LinkedIn accounts; and your digital photos? As we have become increasingly dependent on technology, especially for communication, this question has grown in significance.

To address this question, the General Assembly of Virginia has enacted the Privacy Expectation Afterlife and Choices Act (Virginia Code § 64.2-109 et seq.), effective July 1, 2015. Sponsored by Senator Mark D. Obenshain, R-Harrisonburg, the Act expands on a law passed two years ago relating to the ability of a personal representative of a deceased minor to access the minor’s digital assets. The new law continues to provide special provisions for deceased minors, and contains additional provisions which apply to deceased adults.

The Act distinguishes between digital “records” and digital “contents.” “Records” is defined to include user information, the identity of persons with whom the user has engaged in electronic communication, the time and date of the communication, and the electronic address of the person. “Contents” refers to the substance of a digital communication, including any subject line.

Under the Act, a personal representative (the executor or administrator of an estate) can ask a court to order a provider (for example, Twitter) to supply the last 18 months of a decedent’s records. As long as the request is not in conflict with the decedent’s Will and meets some other conditions, the court will order the provider to disclose the records. The court can also order the production of records more than 18 months old, if necessary to administer the user’s estate.

To obtain the actual contents of a decedent’s digital communications, however, the personal representative must show that the user affirmatively consented to the disclosure, either by Will or through use of account settings. If the decedent took action to protect the privacy of his records and/or contents, a provider may nonetheless withhold access to this information.

Online communities have already begun providing users with options for how their accounts should be handled at their death. Facebook, for example, currently allows users to determine whether they would like to have their accounts memorialized or permanently deleted upon their death. If you would like your account memorialized, you may also name an individual to maintain it. That person cannot, however, remove or change your past posts or photos, remove individuals from your friends list, or read messages you have sent to other friends.

In light of these new changes in the law, individuals with digital assets and accounts should consider whether they would like to specifically address this issue in their Wills, either expressly authorizing or denying their executor the ability to access their digital records and communications. Individuals who wish to give their executor or loved ones unfettered access to their accounts should also leave a list of account usernames and passwords. If you have left loved ones your log-in information, no court order will be necessary to access your digital assets. For individuals who would like to ensure this information is accessed only after their death, services such as PasswordBox (www.passwordbox.com) will store your website and social media passwords and account information, and will give them to an individual you have designated once they prove that you have died.

Kit Kat

Ask Kit Kat – Pups from Puerto Rico

Hook Law Center: Kit Kat, what can you tell us about the puppies from Puerto Rico that are brought to the US to be adopted?

Kit Kat: Well, there apparently are too many dogs in Puerto Rico, especially in an area known as ‘Dead Dog Beach.’ The beach’s real name is Playa Lucia in the town of Yabucoa in southeastern Puerto Rico. In Puerto Rico, stray dogs are called “Satos, ” meaning street dogs in Spanish. Some are wild dogs, but others are dogs which have been dropped off there for one reason or another. At one point, says Chrissy Beckles, founder of the Sato Project which rescues and rehabilitates these dogs for relocation to the US, there were as many 300 running loose in the area.

Before being relocated to the US, Beckles and her helpers treat the dogs and make sure they are in good health. On average, it takes about 10 weeks to get them ready for the journey. Others are so traumatized that it has taken up to a year before they are ready. Sometimes, it takes quite a bit of effort to capture these canines. Even though they are starving, they are wary of people. For example, the hound they named “Bam Bam” had to be lured into a cage with some meat. Others like “Evelyn”, a female beagle about to give birth, was easy to leash. She had obviously been someone’s pet, but it was apparent someone had dropped her off deliberately to avoid dealing with her impending delivery.

And so it goes. The average cost to treat and rehabilitate a dog in this project is $1,000. Some unusual cases cost much more—like “Adrian” whose rehab cost was $20,000. He had been so severely malnourished that he was literally a bag of bones. The organization’s motto is “We fight so the dogs of Puerto Rico don’t have to.’ When ready to go to the US, they are crated and fly in the cargo section, but they are met in the US with another set of volunteers. If you would like to know more about this effort, go to TheSatoProject.org. or their Facebook page. (http://www.cnn.com/2015/08/25/living/sato-project-dead-dog-beach-puerto-rico/index.html)

Upcoming Seminars

  • September 16, & 17, 2015 – Hook Law Center Seminar Series:  “My Loved One Failed to Plan, Now What?,” 9/16 @ 10am at Crowne Plaza Hotel in Virginia Beach and 9/17/15 @ 10am at Hilton Garden Inn, Harbour View in Suffolk.  Please visit www.hooklawcenter.com/seminars to register.
  • October 9, 2015 – Andrew H. Hook will be part of a panel discussion at the 2015 Art of Healthy Aging Forum & Expo on Friday, October 9, 2015, at the  Virginia Beach Convention Center, 100 19th Street, Virginia Beach, VA 23451.  The forum & expo runs from 9 a.m. – 2 p.m. Tickets are $15 until September 30th (limited seating). $25 at the doorTo register for this event, please click registration.
  • October 20, 2015 – Andrew H. Hook and Shannon Laymon-Pecoraro will speak on Incapacitated Adults at a seminar for personal injury attorneys.
  • October 26, 2015Shannon Laymon-Pecoraro will be speaking at the National Business Institute’s seminar on The Probate Process from Start to Finish in Virginia Beach, Virginia.

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