Virginia Code 64.2-121: Disclosure of content of electronic communications of deceased user.
If a deceased user consented to or a court directs disclosure of the contents of electronic communications of the user, the custodian shall disclose to the personal representative of the estate of the user the content of electronic communications sent or received by the user if the representative gives the custodian:
Terms Used In Virginia Code 64.2-121
- Account: means an arrangement under a terms-of-service agreement in which a custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user. See Virginia Code 64.2-116
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Court: means the circuit court for the county or city having jurisdiction over the fiduciary in matters relating to the content of this article. See Virginia Code 64.2-116
- Custodian: means a person who carries, maintains, processes, receives, or stores a digital asset of a user. See Virginia Code 64.2-116
- Electronic: means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. See Virginia Code 64.2-116
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Information: means data, text, images, videos, sounds, codes, computer programs, software, databases, or something that is substantially similar. See Virginia Code 64.2-116
- Online tool: means an electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person. See Virginia Code 64.2-116
- Personal representative: means an executor, administrator, curator, designated successor or successor under the Virginia Small Estate Act (§ Virginia Code 64.2-116
- Record: means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. See Virginia Code 64.2-116
- User: means a person that has an account with a custodian. See Virginia Code 64.2-116
1. A written request for disclosure in physical or electronic form;
2. A certified copy of the death certificate of the user;
3. A certified copy of the letter of appointment of the representative or a small-estate affidavit or court order;
4. Unless the user provided direction using an online tool, a copy of the user’s will, trust, power of attorney, or other record evidencing the user’s consent to disclosure of the content of electronic communications; and
5. If requested by the custodian:
a. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
b. Evidence linking the account to the user; or
c. A finding by the court that (i) the user had a specific account with the custodian, identifiable by the information specified in subdivision a; (ii) disclosure of the content of electronic communications of the user would not violate 18 U.S.C. § 2701 et seq., 47 U.S.C. § 222, or other applicable law; (iii) unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications; or (iv) disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.