[WSBAPT] access to digital content

[Sharon Rutberg]

Happy New Year to everyone!

We have a question on RCW 11.120--Uniform Fiduciary Access to Digital Assets Act. Wondering if anyone has thoughts about the following:

Our question is whether, as a practical matter, a Washington probate court would require a deceased user's explicit consent to disclosure of content in order to give a court order that orders a custodian of digital assets to disclose the contents of a digital account.

I am attempting to help a personal representative/surviving spouse get the contents of her deceased husband's Google account.  The husband prepared a military will in another state.  The will does not reference digital assets.  We don't have explicit consent.

Provision 11.120.070 provides for when a custodian must disclose content of a deceased owner.  The first sentence says  "If a deceased user consented to or a court directs disclosure..." and then the statute goes on to say that one of the items that must be presented to the custodian is evidence of user's consent. (see 11.120.070 (4)).  The first sentence makes it sound like you need consent OR a court order, but then number 4 confuses the issue.  I read a Harvard Law review article that says the general understanding of the Uniform Fiduciary Access to Digital Assets Act is that there must be explicit user consent for disclosure.

Google is requiring us to provide a court order.  The court order must state that there is no state law or federal law (including the Stored Communications Act) that prohibits disclosure, and it must say there is sufficient consent under the Stored Communications Act.  I found Ajemian v. Yahoo!, Inc, 478 Mass. 169 (2017) (personal representatives can lawfully consent on account owner's behalf under the Stored Communications act, even in the absence of explicit consent from the account owner), but that doesn't help much in Washington, especially because we have the uniform act.

My reading is that 11.120 does not prohibit disclosure (11.120.060 says the custodian may disclose content to a fiduciary), but 11.120.070 might require explicit consent before a court would give an order.   Also, I think it might be hard to get a Washington court to say there is sufficient consent under the Stored Communications Act.

Does anyone have experience with getting a court order in these circumstances?  Do you have any advice or other direction for us?

Thanks -
Sharon and Wendy at Salmon Bay Law Group, PLLC



Sharon C. Rutberg, Attorney at Law
Salmon Bay Law Group, PLLC
1734 NW Market St.
Seattle, WA 98107
206-735-3177, ext. 2
sharon at salmonbaylaw.com<mailto:sharon at salmonbaylaw.com>
Website: www.salmonbaylaw.com<http://www.salmonbaylaw.com/>
Washington State Bar #47055

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