IN PRACTICE

Digital Assets Beyond Death

You might be dead, but your Facebook account could be in legal limbo

, Daily Report

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Photo of Alan Levine
Alan Levine's practice includes trust and estate litigation, guardianships and conservatorships. Prior to joining Lyle & Levine, he prosecuted in Cobb County for six years.

In William Gibson's dystopian novel, "Neuromancer," literary inspiration for "The Matrix Trilogy," the barrier between real and virtual life disappears. Ghosts exist as digital constructs of their former flesh-and-blood selves, flitting to and fro in the limbo of cyberspace, known as The Matrix. There, these ROM encapsulated shells seemingly hold onto the personality and intelligence of their prior incarnation. And, in a prime example of poor estate planning, one of these doomed characters, Dixie Flatline, is thus trapped when what he really wants is to be entirely erased down to the last byte—to truly and finally be allowed to die. One wonders that Dixie didn't have a well-drafted advanced directive for health care.

While the reality of Gibson's vision might never be realized in full, in a sense, Dixie has become an actuality, as our digital lives continue past our nondigital deaths. Failing to plan for how digital assets will be managed once we're gone already is causing grief for loved ones who find they are unable to access the various accounts of the deceased. It is reported three Facebook users die per minute.1 Allowing for the existence of multiple accounts, some estimate 30 million Facebook accounts belong to dead people.2 With some 1.06 billion active monthly users on Facebook at the end of last year, 219 billion photos uploaded in 2012, and more than a trillion likes recorded on a comparable number of status updates,3 demographics dictate that the necessity for digital estate planning will become ever more important.

Law lags technology

In 2011, Virginia dairy farmer Ricky Rash suffered ineffable heartbreak when his 15-year-old son, Eric, committed suicide. Eric gave no indication either at home or school that he was hurting and needed help. Eric's parents wanted access to their child's Facebook account. They needed to find an answer, some clue, as to why Eric ended his life. But Ricky was shocked to learn that even as a father, he had no right to access Eric's Facebook account. Facebook's position was that, upon Eric turning 13, they entered into a binding contract with him. Under the terms of that contract, Facebook had to respect Eric's privacy and, thus, could not share access to the account with his parents, even under the uniquely tragic circumstances presented.4

Thanks in part to the efforts of Ricky, Virginia now grants to the personal representative of a deceased minor access to that minor's digital accounts. More specifically, it provides for the representative to "assume the deceased minor's terms of service agreement" within 30 days of a written request for access and presentation of the minor's death certificate.5 To reassure service providers they will not run afoul of federal or other state law prohibiting unauthorized disclosure of protected information, the Virginia statute expressly grants access "pursuant to 18 U.S.C. § 2702" of the Stored Communications Act, and in conformity with other applicable laws, e.g., the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 et seq. (2006).

While Virginia now provides access for parents to their children's email and social media accounts, when necessary, only a few states have begun to address whether and how beneficiaries, fiduciaries or other similarly situated parties may gain access to the digital assets of a deceased or incapacitated person. Thus far, only Connecticut, Idaho, Indiana, Oklahoma and Rhode Island have applicable laws. The amount of access contemplated falls across a spectrum from limited to generous. Connecticut and Rhode Island only provide for access to the contents of electronic mail. Idaho and Oklahoma also include access to social networking and blogging sites, as well as the right to continue the use of or to delete such accounts.6 Nevada recently provided the personal representative of an estate the right to terminate the nonfinancial electronic accounts of a decedent but not otherwise access or obtain copies of digital information.7 Georgia is not yet among the states with a law on point to help personal representatives, conservators, trustees—or their lawyers and the courts.

California, here we come

In 2002, in Massachusetts, Robert Ajemian opened a Yahoo account for his brother John.8 On Aug. 10, 2006, John died in an auto accident. Robert considered himself co-owner of John's Yahoo account, but he had not accessed it for some time and forgot the password. Robert wanted to get his brother's emails to find and inform friends about the John's death. Upon being appointed co-administrator of John's estate, Robert also needed access to the Yahoo account to identify and locate assets. Yahoo maintained the Stored Communications Act prevented them from providing emails, even to the court appointed administrator of an estate.

Yahoo argued the case had to be heard in Santa Clara, Calif., under the terms of service forum selection clause. The appeals court found no evidence the forum selection clause was made obviously locatable on the Yahoo website, and thereby communicated to Robert. Nor was there evidence Robert even clicked on a button to convey acceptance of the provision. It was important to the Appeals Court that "electronic bargaining…have integrity and credibility." Furthermore, there was no evidence any estate assets were in California or that a California probate court would have in rem jurisdiction over the estate. Under the facts presented, the Appeals Court would not require Robert to sue Yahoo in California. The probate court's dismissal of Robert's claim was reversed, remanding for further determination whether the contents of John's emails were part of his estate and the effect of the Stored Communications Act on the dispute.

From loss of assets due to security breaches of unmanaged, open accounts to unfulfilled wishes and unanswered questions, there are many downsides to not planning for one's digital afterlife. Even if one prevails in court, the only real winners in litigation are the lawyers. Robert Ajemian won not access to his brother's emails but the right to keep fighting over them in a court closer to home—in a courtroom he'd already lost in. Keeping out of court is usually the preferred path for ensuring estate planning client happiness. Still, if multiple trips to California to litigate is too tempting—and you're thinking about sitting for the California bar exam anyway—not only Yahoo but many other companies, including Google, Facebook and LinkedIn have forum selection clauses making Santa Clara, Calif., the locale for any litigation. While Robert won his fight over where to fight, facts matter. And they differ from case to case.

Prudently provide passwords

One instance of a lost password denying posterity something of value occurred in 1990 when Leonard Bernstein, composer, conductor and musical director of the New York Philharmonic, died. The maestro left only an electronic, password-protected draft of his memoir, Blue Ink. To this day, no one has managed to access the manuscript.9 Will you deny future generations something of value, should the keys to your digital detritus disappear? When considering how many digital accounts one has, e.g., for email (Yahoo, Gmail, Hotmail, etc.), for networking (Facebook, Twitter, LinkedIn, etc.), for blogging (Wordpress, Tumblr, Blogger, etc.), for file storage (Dropbox, iTunes, Picassa, etc.), for electronic storefronts (eBay, Amazon, Itzy, etc.), for entertainment (YouTube, Netflix, gaming sites, etc.), for website hosting, for banking and investment accounts and myriad other digital subscriptions—it's hard to believe the claim the average person has only 25 different passwords.10 One of the authors of this article fast approaches 100 passwords. On top of that are various user names and security questions.

Some security experts advise against writing this account information down. But what's a person who can't even remember what they had for breakfast that morning to do? Regardless of a website's admonition not to share passwords or account information, good estate planning, especially in a state with no laws to help, means making sure a personal representative or agent will be able to access digital accounts when necessary. Without such planning, while a person who should have access to a loved one's accounts is unable to get it, digital lowlifes could be hacking in and stealing valuable information and assets.11 By the time a court has finally decided whether to grant access to an account, it might be too late.

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