Don't Let Your Digital Assets Die With You

Digital Estate Planning Law

The May 2013 issue of the Internet Law Researcher newsletter (which is available to members of the Duke Law community through Westlaw‘s GLILR database) rounds up a bibliography of legislation and articles related to digital asset estate planning. To locate the article in Westlaw Classic or WestlawNext, use the citation 18 No. 5 Internet L. Researcher 1.

Planning for death has always been an uncomfortable and difficult topic for most people, and the growth of social media and other online accounts has added a new layer of complexity to sorting out the affairs of the recently deceased. Author Ken Kozlowski describes the current situation as “a big mess” in which “the federal Stored Communications Act (SCA) [is] being cited as a reason for services such as Facebook to withhold access to deceased individuals’ accounts, passwords, stored photos, etc.” Five states have passed legislation related to control of deceased individuals’ online accounts, and undoubtedly more state legislatures will follow suit.

The Internet Law Researcher article recommends a number of publications from legal and mainstream sources, including the recent law review student note by Maria Perrone, What Happens When We Die: Estate Planning of Digital Assets, and the blog Digital Passing. The recommended resources offer tips for developing a plan to handle digital assets after death, and serve as a good supplement to the Goodson Law Library’s collection of estate planning guides, most of which do not discuss digital assets in detail.

Learn How to Preserve Your Data with Take Control of Your Digital Legacy

US digital legacy laws in 2013

New Hampshire recently gave some thoughts about what happens to your facebook page when you die. More precisely, legislation is being changed so that an estate executor would be in a position to get a hold on the different social networks, emails, … after the death of the owner – which is something that is not the custom today.

Peter Sullivan is the State Rep. who started the movement of digital estate planning in the New Hampshire House of Representatives, which accepted this bill 222 to 128. The goal of these legislation is namely to give a better control of the situation to the persons who just suffered from a loss.

The other states so far are Rhode Island, Connecticut, Oklahoma, Idaho, and Indiana. The first and the second were the first states to introduce a control of digital legacy, but at the same time only applied on a limited number of services. Oklahoma was supported by a state legislator, Ryan Kiesel. Kiesel helped draft the texts, but according to his own advice, the issue must be addressed to by the federal government.

 

Let’s have a quick look at the different states and statuses. Here are attached links to the different texts concerning the current laws (as of beginning of 2013).

 

Rhode Island: The legislation simply allows an executor to access the accounts of emails of the departed.

Source: http://webserver.rilin.state.ri.us/Statutes/TITLE33/33-27/33-27-3.htm

 

Connecticut : The same applies – and still the question of social networks is not raised.

Source: http://www.cga.ct.gov/2005/act/Pa/2005PA-00136-R00SB-00262-PA.htm

 

Indiana: The executor can be granted access to “information being stored online”.

Source: http://www.in.gov/legislative/ic/code/title29/ar1/ch13.html

 

Okhlahoma: The text gives the executor (or an estate administrator) the right to be granted the access to emails, as well as social networks, accounts.

Source: http://legiscan.com/OK/bill/HB2800/2010

 

Idaho: The Idaho text allows the executor to take over and control the account of the decedent, including the Facebook, Twitter, as well as any email provider. The major difference resides in the fact that the executor can resume the use of the account, even on a posthumous base.

Source: http://legislature.idaho.gov/legislation/2011/S1044.pdf

 

Digital Files After Death, What Happens to Your Digital Legacy?

Electronic assets

Electrons and pieces of magnetic stuff are replacing the usual asset. In the electronic realm, you are constantly generating assets: emails, tweets, pictures on flickr, short messages on facebook, or videos on youtube.

Online, we generate a lot of assets, but we don’t think of them as assets,” says Eric Goldman, a professor of law and director of the High Tech Law Institute at Santa Clara University School of Law in California. “We don’t manage them as assets. We create content. We create data. We develop relationships. All of those things are valuable, but we don’t manage them as valuable assets.

The ease of creation (and consumption) online is making us create content everyday. But the tools we are using to do so are protecting our privacy with passwords ; our signatures are replaced by puny text strings that we have to remember each time we are using a different creation medium.

But once you pass away, who will be able to receive your electronic assets if they don’t have the key??

Who will get your iTunes when you die?

A shift in legacies

The so called GenY has been growing in a different age than their parents. The digital realm has taken over some aspects in everyday life, and that’s something we will have to live with.

We previously  had photo albums, scrapbooks, handwritten journals and letters, pieces of ribbon and shoeboxes to rule them all. If you wanted to get back in time, you just had to open these shoeboxes, carefully hidden in the basement or stored in the closet behind a pile of blankets.

Today, we do have dvd of photos, social media accounts, Facebook statuses and emails ; even the diplomas you are getting from your online courses are PDFs, not pieces of paper framed and proudly displayed behind your desk.  Cyberspace is getting a hold on these precious memories. And that may be an issue in terms of memories and privacy.

Most of our online accounts are locked behind passwords, and without proper guidance, memories may arise once again when you would have liked them to disappear, or those precious memories, photos or videos that you had with a love one may be deleted from cyberspace. That’s why you should take action right now, read more on the howtos, and prepare a list of your legacy, with proper instructions and beneficiaries !