OPINION OF THE COURT
BRANDON R. SALL, S.
In this miscellaneous proceeding brought pursuant to article 13-A of the EPTL, Gregory S. Coleman and Adrienne H. Coleman request a decree directing Apple Inc., as custodian, among other things, to disclose "all of the digital assets of any kind" owned by the decedent, Ryan Matthew Coleman, their son, that are currently in the possession of Apple.
The petition is decided as set forth below.
Ryan attended Georgetown University, and he graduated in 2014. At Georgetown, he was given RMC88@georgetown.edu as his email address. Ryan owned an iPhone, manufactured by Apple,
Ryan died unexpectedly in his sleep, on December 25, 2016, at the age of 24. He died intestate, and letters of administration issued on March 20, 2017, to the petitioners. Ryan's initial death certificate stated that the cause of death was "pending further study." According to the petition, the petitioners requested that the Westchester County Medical Examiner perform an autopsy on Ryan with the hopes of finding the cause of his death. The results were inconclusive, and the death certificate was amended to state that the cause of death was "undetermined."
After Ryan's death, the petitioners took possession of Ryan's iPhone. Adrienne contacted an Apple representative to obtain information about the iPhone, not having the passcode for it to access any of its data. The Apple representative explained that the data could not be retrieved without the passcode, but that,
On May 23, 2017, the Apple representative sent an email to Adrienne explaining exactly what the court order should contain to insure compliance by Apple in the disclosure of any information sought. The court order must state: (1) the decedent was the user of all accounts associated with the Apple ID; (2) the petitioners are the personal representatives of the decedent; (3) the personal representatives are the "agents" of the decedent, and their authorization constitutes "lawful consent" as those terms are used in the Electronic Communications Privacy Act; and (4) Apple is ordered by the court to assist in the recovery of decedent's personal data from their accounts, which may contain third-party personally identifiable information or data.
On October 15, 2018, the petitioners filed this proceeding seeking a court order to have access to all of Ryan's digital assets associated with his iPhone to: (1) determine whether Ryan had any medical issues that his two younger siblings may also have; (2) determine whether any legal action on behalf of Ryan's estate may be appropriate; (3) identify and collect Ryan's digital and non-digital assets; and (4) marshal any of Ryan's digital assets as part of the estate administration. They also asked that the court make certain findings including that Ryan maintained an iCloud account associated with the Georgetown email address and that he owned a certain iPhone.
Apple was cited on the petition, and it defaulted in appearing.
The administration of digital assets in the State of New York is governed by a comprehensive statutory scheme set forth in article 13-A of the Estates, Powers and Trusts Law.
A digital asset is defined as an "electronic record in which an individual has a right or interest. The term does not include an underlying asset . . . unless [it] . . . is itself an electronic record" (EPTL 13-A-1 [i]). Subdivision (e) defines the content of an electronic communication as information which: "(1) has been sent or received by a user; (2) is in electronic storage by a custodian providing an electronic-communication service to the public or is carried or maintained by a custodian providing a remote-computing service to the public; and (3) is not readily accessible to the public." Electronic is defined as "relating to
During his lifetime, a user of digital assets may via an online tool, direct a custodian to disclose or not to disclose to a designated recipient his digital assets including the content of those assets (EPTL 13-A-2.2 [a]). An online tool is defined as a means offered by a custodian to a user to provide direction regarding disclosure of digital assets (EPTL 13-A-1 [p]). If a user has not availed himself of such an online tool or one is not offered by a particular custodian, a custodian may recognize, for the purposes of disclosure to a personal representative, a decedent's last will and testament, a trust or another type of agreement which disposes of these digital assets.
If a decedent used an online tool or left a record disposing of the content of his digital assets, a custodian must provide that content to the decedent's personal representative (EPTL 13-A-3.1). The turnover of this information may also be mandated by court order. The section sets forth the requirements with which a representative must comply before disclosure may be had.
As to non-content digital assets (EPTL 13-A-3.2), such as a catalogue of the electronic communications
In accordance with section 13-A-2.4 (a), the custodian of digital assets has complete discretion to either grant a fiduciary of a deceased user: (1) full access to a user's account; (2) partial access to a user's account so as to allow tasks to be performed which are required of the fiduciary; or (3) provide a
There is limited precedent construing EPTL article 13-A and the disclosure of digital assets to a personal representative. In the reported cases and the case at bar, while the custodian of the digital assets did not appear in the proceeding in response to the citation issued by the court to oppose the relief requested, it previously had informed the personal representative that there would be no disclosure of the digital assets sought without a court order requiring it.
In Matter of White (NYLJ, Oct. 3, 2017 at 25, col 1 [Sur Ct, Suffolk County 2017]), the fiduciary of the decedent's estate sought an order granting him access to the decedent's email account with Google, Inc. The fiduciary alleged that the decedent may have owned a business at the time of his death, and he needed access to the email account to confirm that this business existed to administer this potential asset for the estate.
In permitting access to the email account only to the extent of requiring Google to disclose the "contacts information stored and associated with the email account," the court noted the importance of balancing a fiduciary's duty to properly administer the estate with the possibility of the unintended consequences of disclosure of "sensitive or confidential data" regarding the decedent (id.). The court wrote "unfettered access to a decedent's digital assets may result in an unanticipated intrusion into the personal affairs of the decedent" that is unrelated to the reasons the content of the emails was sought (id.).
In Matter of Serrano (56 Misc.3d 497 [Sur Ct, NY County 2017]), the decedent's fiduciary requested access to his deceased spouse's Google email, contacts, and calendar information to "be able to inform friends of his passing" and "close any unfinished business." In limiting the permissible disclosure to the non-content contact list and calendar information associated with the decedent's account, the court, citing EPTL 13-A-3.2, stated that the record before the court indicated that this data was all that was "reasonably necessary for the administration of the estate" (id. at 499). The court held open the possibility of a renewed application in which the fiduciary showed how the content information was necessary to the estate administration.
Here, Ryan neither used an online tool to grant his fiduciary access to the content of his digital assets nor had a last will and testament or other document which controlled the disposition of the content of these assets.
As set forth above, the petitioners seek disclosure of all of Ryan's digital assets. As explained by the Apple representative, because the passcode to the iPhone is not known, access to the digital assets would have to be accomplished through the iCloud, providing the data was backed up to the service. According to Apple's Legal Process Guidelines, granting access to a user's iCloud is equivalent to the disclosure of: incoming and outgoing communications such as time, date, sender email addresses, recipient email addresses, email content, photo stream, iCloud photo library, contacts, calendars, bookmarks, Safari browsing history, iOS Device Backups, which may contain photos and videos in the camera roll, device settings, app data, iMessage, SMS, and MMS messages and voice mail.
Based on the record before this court, which includes the extent of the information available to a personal representative upon accessing the iCloud, and balancing Ryan's interests in his not having consented to the disclosure of the content of any of these digital assets, the court finds that the petitioners have not amply demonstrated, at this juncture, the need to access the content of Ryan's digital assets for the administration of his estate (EPTL 13-A-3.1 [e]  [D]) or any other reason.
As the court noted in Matter of Serrano (56 Misc.3d 497), if once the non-content information is disclosed pursuant to this decision and order to the petitioners by Apple, the petitioners can demonstrate the need for the content-based digital assets, the court will entertain a new petition based on the additional evidence.
Accordingly, the court makes the following findings: (1) decedent was the user of an account with Apple, the ID for which is the email account provided by petitioners, individuals with personal knowledge that decedent was the user of that email account; (2) petitioners are the fiduciaries of decedent's estate; and (3) no lawful consent is required for disclosure of the non-content digital assets associated with the email under the Stored Communications Act (18 USC § 2701 et seq.) or the New York Administration of Digital Assets Law (EPTL art 13-A).