February 2012 Story Published By Lawyers.Com Explains The Legal Aspect In 2005, college student Loren Williams was killed in a motorcycle accident. His grieving mother, yearning to feel closer to her son, wanted to use his Facebook page. More than just seeing the site, she wanted to see his correspondence, to read his messages, in hopes of understanding her son better.
Facebook refused Williams’ mother, Karen, access to his account and even changed the password when Karen got it from a friend. They based their refusal citing the 25 year old, ‘1986 Electronic Communications Privacy Act’ which is a federal law concerning digital media that prevents disclosing stored communications unless there’s a court order.
She eventually retained a lawyer and sued Facebook in 2007, finally getting the court to issue an order to allow her access.
License Expired
When you sign up for a website, you are agreeing to terms of license, so any "assets" under that license fall under licensing rules, says Florida-based estate planning lawyer David Goldman.
If you have an iTunes account, and you purchase music through that account, when you die the license for that account expires. The same principle applies to Facebook or Twitter, so when you die the license to all the content generated on that account, technically, expires. So if people gain access to these accounts after the user has died, it could be a liability, Goldman says. Legally speaking, once someone passes, their licenses to all that media expires.
"If you have an iPhone, you’d have hundreds of dollars worth of apps or thousands of dollars worth of music. When you die those licenses expire," Goldman says.
It’s a little different with a financial instrument like PayPal, where the money wouldn’t disappear, but for survivors of the deceased to get access to digital accounts, they’d need to hire a lawyer.
"There is litigation against AOL and Google to access emails. The courts have, after a bunch of time and a bunch of money, appeared to grant access. So far as I know they haven’t really provided access, but compiled the content. You’re basically getting raw data but not getting access to the account itself," he says. Opening a probate case can costs thousands of dollars and take time.
Some attorneys suggest using a will or trust that gives access to a password through a separate writing memorandum – a document that can be attached to a will, so the will does not need to be re-written every time there’s an adjustment.
The best way to ensure a digital legacy is to create accounts in the name of a trust. If the account is in the name of a trust, the trustees and beneficiaries can retain access to the digital licenses.
Digital Death
The issue of digital estate planning goes beyond whether fiduciaries should have access to social media issues. There’s online banking, documents, and the thousand other little things people do electronically.
According to Seattle Attorney Wendy S. Goffe, "If you run an Internet-based business, digital estate planning needs to be integral to your plans. You need to have detailed instructions." Goffe, an estate lawyer with Graham & Dunn, PC, goes on to say that, "If you’re a professional photographer and you’ve got all your photos online, or you’re an author and you self-publish online and you have all your work stored in Internet files, it’s critical. It is your legacy. You can have a Pulitzer-winning novel, it’ll be all gone."
There aren’t any concrete rules in place, either. Even estate-planning attorneys may be less than web-savvy Goffe admits, with a laugh, that her Seattle clientele are often more tech-smart than she. Consumers should make sure their attorneys are aware of their digital assets, and if needed, engage an adviser who knows his or her way around digital estate.
"I think we’re in a time of disruptive change where there isn’t a right answer, and there are a lot of approximate answers. The standards are changing really quickly, but one good option is to use a site that stores all this stuff and then tell someone you have it there," she says. Don’t just give your attorney your password information, though. "Another (option) is to put it all on a thumb drive and stick it in a safe deposit box," she adds.
A person’s will should specify what he or she wants done with all their digital property after they pass. Goffe says, "A person may have a self-published Pulitzer-winning novel on Amazon that would be deleted forever" if a fiduciary doesn’t know it exists. On the other hand, a parent might not want their children to read their journal, and that parent should make those wishes clear in a will.
If other states or the federal government adopt more progressive and up-to-date laws about digital estate and media, beneficiaries could gain access to log-in information; but until then, consumers have to obtain a court order to get access to their loved ones’ social media sites after they’ve passed.
End Of Story…
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Original Story Written By Ada Kulesza & Published By Lawyers.com
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1 comment:
Even estate-planning attorneys may be less than web-savvy Goffe admits, with a laugh, that her Seattle clientele are often more tech-smart than she. Consumers should make sure their attorneys are aware of their digital assets, and if needed, engage an adviser who knows his or her way around digital estate.
The above quote taken from the article on web legacies, demonstrates the difficutlies court and legislatures will face in making law to govern the transfer of electronic assets.
Technology changes quickly and most legal types are not keeping up.
There are licenses and agreements of all sorts on the web. One common example is pornography.
Someone might well want heirs and loved ones to have access to financial assets, keepsakes and other items of a legacy, but it is hard to imagine anyone wanting heirs perusing the porn library one might have amassed. Porn is not the only such activity or information one might want to keep concealed from heirs.
The law covering the heretibility of e-assets wil be slow and painful development as technical prowess will almost certainly outstrip our social conventions.
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