Landmark Case Could Make Access To Digital Assets Easier

The true ownership of digital assets have been difficult to ascertain but a recent case in the USA may have provided some clarity on what a person owns in the digital realm.

In the case of re Scandalios (2017-2976/A N.Y. Surr. Ct. 2019), electronic and digital titans, Apple, have been ordered to allow a grieving husband access to his deceased husband’s Apple account.

Under the terms and conditions to Apple’s iCloud, they claim that “any rights to your Apple ID or content within your account terminate upon your death.”

So much of our lives are now intertwined with the technology we use every day. When Ric Swezey passed away, he had failed to consider his digital presence when making his Will. This inadvertently restricted his husband’s (Nicholas Scandalios) access to extensive photographs of their life together.

The potentially landmark ruling divided digital assets between what it considers electronic communication and non-electronic communication. Electronic communication would only be legally passed on to executor’s through the permission of the deceased through a legitimate Will.

The court found that photographs on the other hand are not a form of communication. They were taken and stored using the ease of which the technology allows. The photographs were therefore released by the court, highlighting the fact that assets of this nature could be inherited much easier in the future.

The Court documents stated: “disclosure of electronic communications, unlike disclosure of other digital assets, requires proof of a user’s consent or a court order. Decedent’s photographs stored in his Apple account are not ‘electronic communications’.”

Leigh Sagar TEP, Chairman of the STEP Digital Assets Special Interest Group, comments: “Although this case refers to laws in the US, it is universally the case that all persons using and controlling digital data should be able to have some control over the use and enjoyment of that data after death or incapacity. It is important that their personal representatives and attorneys are able to find and access their computing devices, including crypto-asset wallets.

“Modern devices, such as mobile phones, are supplied with security that is difficult to break in normal circumstances and supplying passwords for access to these devices can provide comfort. But these modern devices tend to be used to store all kinds of important and personal information whose privacy should be protected, so that it is essential that passwords be kept in a safe place until needed.”

Will cases like this make it easier to access digital assets in the future?