Hooked on Twitter? Can’t miss a day without tweeting? Soon there might be a way to continue gracing followers with pithy witticisms even after we’re no longer alive. The application, now in beta, is called “LivesOn.” “When your heart stops beating, you’ll keep tweeting,” the LivesOn website home page cheerily proclaims.
Welcome to the world of the “digital afterlife,” a product of the fact that we increasingly live our lives online. With the ubiquity of social media and other forms of online media, we should consider the possibility that our tweets, photos, videos, posts, blogs, likes, pins, tags, online storefronts, email messages and avatars may live on even after we have died, and whether this is what we want.
Cases in the News
A number of well-publicized cases illustrate the negative consequences of not planning what to do with online accounts in the event of an untimely death. Take the case of Lance Corporal Justin Ellsworth, who was killed at the age of 20 in 2004 by a roadside bomb while deployed in Iraq. His father John Ellsworth wanted to create a memorial to his dead son and requested that Yahoo release the e-mails that his son had written while he was on duty. After a legal battle, the following year, a probate court ordered Yahoo to provide the contents of his son’s email account to Ellsworth (see Yahoo releases email of deceased Marine).
The case highlighted the tensions between an ISP’s terms of service, which are designed to protect privacy, and the needs and interests of a grieving family. Other cases have arisen that involve families who want access to the accounts of children who commit suicide or who pass away due to illness.
Why You Should Care
Digital estate planning can help prevent, or at least mitigate, the painful consequences of situations such as those encountered by the Ellsworth family. Without digital estate planning, your survivors will have to guess at what your wishes might have been. Well-meaning family members, if they have the technical capabilities, may circumvent terms of service and your privacy to access the contents of your digital accounts. Information that you may not have intended others to see may be brought to light. Alternately, valuable online information that you would have wanted your survivors to access may not be accessible and ultimately deleted.
In addition, proper digital estate planning can help prevent your identity from being stolen after you die or become incapacitated. As Gerry Beyer and Kerri Griffin note in their paper, Estate Planning for Digital Assets, “Until authorities update their databases regarding a new death, criminals can open credit cards, apply for jobs under a dead person’s name, and get state identification cards.”
Herding the Legal Cats: The UFADAA
Proper transmission of digital assets after death is an emerging area of law. Currently, the laws and guidelines in the United States on how to handle online accounts and data after death or during incapacitation are incomplete, complex, and conflicting. Fortunately, a recent legal development may help change that. On July 16 in Seattle, the Uniform Law Commission passed the Uniform Fiduciary Access to Digital Assets Act, which governs access to digital assets.
Drafting a successful uniform act that addresses a task that can be emotionally fraught, in the midst of an ever-changing technical and legal landscape, was no small challenge. Among the key challenges that the ULC had to address in drafting the act were: Defining terms that have not been previously defined in any statutes, ensuring compliance with existing federal and state laws that address unauthorized access to digital information (for example, the Stored Communications Act, Computer Fraud and Abuse Act, and The Digital Millennium Copyright Act), providing enough specificity to prevent unnecessarily litigation, and enough generality to allow individuals and courts leeway for evolving interpretation as technology continues to change.
According to a recent ULC press release, “The UFADAA solves the problem using the concept of ‘media neutrality.’ If a fiduciary would have access to a tangible asset, that fiduciary will also have access to a similar type of digital asset.” The uniform act covers four types of fiduciaries:
- Personal representatives (also known as executors) of a deceased person’s estate
- Conservators (also known as guardians) for a living person
- Agents acting under a power of attorney
- Trustees of a trust
While the UFADAA would vest fiduciaries with the authority to access, control, or copy digital assets, it would honor the account holder’s intent to keep certain assets private.
Ultimately, after a final review and edit of the UFADAA (anticipated this fall), this uniform act will be finalized and available for consideration and adoption by the states.
What You Can Do Now to Plan Your Digital Estate
In the meantime, you can still develop an effective digital estate plan, in consultation with your attorney. Key steps will include:
- Completing a digital asset inventory
- Identifying a digital executor and consulting with your attorney
- Providing access to your digital assets
- Providing instructions on how to administer your digital assets
- Granting your digital executor(s) authority to administer your digital estate
Also, it won’t hurt to familiarize yourself with your online service providers’ terms of service and other relevant resources. Key resources that you may want to start with include the following: