AMENDEDDECISION & ORDER In this miscellaneous proceeding brought pursuant to Article 13-A of the EPTL, Gregory S. Coleman and Adrienne H. Coleman (“Adrienne”) (collectively, the “petitioners”), request a decree directing Apple Inc. (“Apple”), as custodian, among other things, to disclose “all of the digital assets of any kind” owned by the decedent, Ryan Matthew Coleman (“Ryan”), their son, that are currently in the possession of Apple.The petition is decided as set forth below.Ryan attended Georgetown University (“Georgetown”), and he graduated in 2014. At Georgetown, he was given [email protected] as his email address. Ryan owned an iPhone, manufactured by Apple,1 and on it, he connected his Georgetown email address. The petitioners assert that they know this to be Ryan’s email address and that they know his phone number because they regularly corresponded and spoke with him.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, if the phone was backed up to the iCloud, data could be retrievable without the code. The Apple representative further indicated that it would not provide any information from the iCloud to Adrienne without a court order.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, from their accounts.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]). Subsection 1[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 technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities” (EPTL 13-A-1[j]).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 subsection sets forth the requirements with which a representative must comply before disclosure may be had2.As to non-content digital assets (EPTL 13-A.3.2), such as a catalogue of the electronic communications3 sent or received by the user, calendar information and contact lists, unless the user provided or a court directs otherwise, they are available to a fiduciary upon presentation to the custodian a written request for such information, the death certificate, the letter of appointment and such additional information as the custodian may request. The custodian shall also comply with the request if a court finds that the non-content digital assets are necessary for the administration of the estate (EPTL 13-A-3.2[d][4][B]).In accordance with subsection 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 fiduciary a copy in a record of any digital asset that the user could have accessed if he was alive on the date of the request. In fact, in contravention of the wishes of the user, who has requested to disclose part, but not all, of his assets, the custodian can choose not to comply if the user’s directions present an undue burden on the custodian (EPTL 13-A-2.4).There is limited precedent construing EPTL 13-A et seq. 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 Roy Langstaf White (NYLJ Oct. 3, 2017, at 25, col. 1[Sur. Ct., Suffolk County]), the fiduciary of the decedent’s estate sought an order granting him access to the decedent’s email account with Google, Inc. (“Google”). 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. 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.In Matter of Ricardo Alberto Serrano (NYLJ, June 19, 2017, at 24, col. 2 [Sur. Ct., N.Y. County]), 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”. 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.In Matter of Swezey (NYLJ, Jan. 18, 2019, at 34, col. 2 [Sur. Ct., N.Y. County]), the fiduciary commenced an SCPA 2103 turnover proceeding against Apple seeking the decedent’s photographs which were stored on iTunes and iCloud. There, the decedent did not use an online tool to provide direction for his digital assets and, although he died testate, he did not specifically provide for the disposition of his digital assets. In ordering Apple to disclose the photographs, the court relied on the facts that, in the decedent’s last will and testament, he left his personalty and his residuary estate to his surviving spouse and that the decedent and his spouse “gave to each other implicit consent to access each other’s digital assets”. In doing so, the court quoted EPTL 1-2.15, noting that a decedent’s property is “defined as ‘anything that may be the subject of ownership’ real or personal’” and that “include[s] assets kept in digital form in cyberspace”.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 voicemail.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][3][D]) or any other reason. Instead, the petitioners may have access to the non-content information disclosable in accordance with EPTL 13-A-3.2.As the court noted in Matter of Ricardo Alberto Serrano (NYLJ, June 19, 2017, at 24, col. 2), 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 Article 13-A).THIS IS THE DECISION AND ORDER OF THE COURTThe papers relied on are as follows:1. Petition filed on August 8, 2017;2. Citation returnable November 14, 2018;3. Affidavit of service filed on November 8, 2018.Dated: March, 2019White Plains, NY
