| With the rapid development of network technology,the number of digital assets held by people is increasing,which causes a problem of the disposition of these digital assets upon the individual's death or incapacity.In the United States,several states have already enacted laws to authorize fiduciaries access to certain digital assets since 2005.Given that the existing state laws are rather simple and general,the Uniform Law Commission(ULC)approved the “Uniform Fiduciary Access to Digital Assets Act”(UFADAA)in 2014,for the purpose of settling this issue.However,the UFADAA focuses on giving fiduciaries broad powers to access digital assets,but neglects the privacy interests of users and the interests of Internet Service Provider(ISP),so that UFADAA Bills were opposed when introduced to many sates.After taking full account of the interests of all parties,the ULC substantially revised the UFADAA,by creating the “Revised Uniform Fiduciary Access to Digital Assets Act(2015)”(RUFADAA).Therefore,this paper will systematically sort out American laws regarding fiduciaries access to digital assets and deeply analyze the conflict of interests during fiduciaries access to digital assets,thus concluding the mechanism to balance the interests of all parties in the RUFADAA and bringing the revelation for China's legislation on digital assets inheritance.This paper consists of five parts:The first part is about an overview of American laws regarding access to digital assets,mainly comparative analysis on the UFADAA drafted by the ULC,the “Fiduciary Access to Digital Assets and Digital Accounts” in Delaware,and the “Privacy Expectation Afterlife and Choices Act”(PEACA)drafted by the industry association in the United States,aiming at revealing the latest development of American legislation on access to digital assets.The second part mainly explores the potential conflicts between federal laws and fiduciaries access to digital assets.The “Stored Communications Act”(SCA)bars ISP from disclosing electronic communication contents to any person or entity except in very limited situations and the “Computer Fraud and Abuse Act”(CFAA)prohibits intentionally access to a computer without authorization or beyond authorization.However,both the legislation and judicature have no clarification about fiduciaries' authority,in which case fiduciaries may violate federal laws at the time of access to digital assets.The third part discusses the restrictions imposed by the ISP on fiduciaries access to digital assets.Although the account holders always take it for granted that they own digital assets,the ISP usually provides digital assets not belonging to the account holders or just a non-transferable limited license for the account holders,resulting in the ownership of digital assets in a mess.In addition,the ISP often forbids any person other than the account holders to access the accounts and provides that digital assets are not transferable and that the ISP has rights to delete all digital assets at users' death in the Terms-of-Service Agreement(TOSA).Therefore,it is possible for fiduciaries to access digital assets in violation of the TOSA between the account holders and the ISP.The fourth part focuses on reviewing the RUFADAA.The UFADAA tends to vest fiduciaries broad authority,while the RUFADAA tries to fully balance the competing interests of all parties involved in the process of fiduciaries access to digital assets,by providing online tools to respect users' intention,recognizing default privacy for electronic communication contents,and reducing the burden of the ISP.The fifth part puts forward some suggestions on the inheritance of digital assets in China.It is suggested that the online tool mechanism which allows the account holders to express their wishes to digital assets should be introduced into the field of digital assets inheritance by reference to the RUFADAA;in the meantime,it is supposed to widely apply this mechanism by the way of combining of legislation regulation and industry self-regulation. |
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