So, what happens to all your digital stuff when you die, anyway? Of course, if you are dead, chances are you won’t much care. But your loved ones might.
As an exercise, think for a moment about all of the digital stuff you use during the typical day. If you are like many, you may have:
- a smartphone, a tablet computer and perhaps a laptop
- a bunch of online accounts to websites like Facebook, LinkedIn, Flickr and other places
- your own domain and web site, and an email account or three
- many people with bank accounts or other financial accounts have online access to view and manage their money
- auction or retail site account access on places like ebay or etsy
- an account on an entertainment site like iTunes
- a remote data account if you use the cloud to backup your important data remotely
- one or more accounts for a virtual world like Second Life
- and there are probably a whole lot of other accounts and passwords you have
Now, holding those accounts in your head, answer these questions:
- Who might be able to access all of those accounts if you were to die?
- Does anyone you care about know your password to your computer?
- Do you have a list somewhere of accounts that you maintain online?
- Are there online accounts you would prefer be kept private, or things you have written you would prefer not become public knowledge, like an online private diary?
- If no one has your password, what might your family do if they needed to gain access to those accounts after you die?
These are the kinds of dilemmas we face in the 21st century as technology expands into more as
pects of our lives. The law has also not exactly caught up with the technology issues for estate planning. There are a patchwork of federal and state laws that tend to restrict the ab
ility of a personal representative or family member from having access to online content of a deceased loved one. For example, the Computer Fraud and Abuse Act (CFAA), which became law in 1986, was intended to prevent the unauthorized use by a person of a “protected computer.” 18 U.S.C. § 1030. Court decisions over time have interpreted the CFAA to subject unauthorized users to civil and criminal sanctions for various forms of unauthorized access to computers or online accounts. The Stored Communications Act (SCA), another federal law, provides a private cause of action for the unauthorized and intentional access of another’s online communications. 18 U.S.C. § 2701. Because these laws have been around before the age of Google and Facebook, many online service providers have established, within their terms of service, limitations on the access by others of a user’s account. There is some concern in the legal community that a person who violates such an online agreement to gain access to a user’s website could be prosecuted under CFAA or SCA.
In addition, some online services may not give you more than a personal license to access an item, such as music. Bruce Willis, of hard-talking and explosion-surviving Die Hard fame, got into an argument with Apple about whether Willis could leave his extensive iTunes collection to his children. B. Griggs, Can Bruce Willis Leave his iTunes Music to his Kids?, http://www.cnn.com/2012/09/03/tech/web/bruce-willis-itunes/ (accessed Aug. 4, 2014). The iTunes license agreement contains a provision that prohibits you from sharing your account information with anyone else. The agreement also limits access to content on iTunes for “only for personal, noncommercial use.” Apple, Inc., iTunes Store Terms and Conditions, http://www.apple.com/legal/internet-services/itunes/us/terms.html (accessed Aug. 4, 2014). If you think about that restriction, after you die, your estate would be unable to transfer your account to an heir to access your iTunes music or movies.
Mark Twain, who lived in a very different technology age, planned that his autobiography would not be published for a 100 years, to reduce the chances that his writing would trigger a libel lawsuit from a living contemporary, or heap an unwanted burden on his surviving family. G. Adams, After Keeping Us Waiting for a Century, Mark Twain Will Finally Reveal All, http://www.independent.co.uk/arts-entertainment/books/news/after-keeping-us-waiting-for-a-century-mark-twain-will-finally-reveal-all-1980695.html (accessed Aug. 4, 2014).
You may very well have digital items you would prefer that your heirs not be able to access. That might have been Alison Atkins’ intention when she died prematurely at 16, having finally succumbed to a colon disease. Though upbeat publicly about her health and condition, she also kept a private blog secured by a separate password where she contemplated suicide and other “dark” thoughts. G. Fowler, Life and Death Online: Who Controls a Digital Legacy?, Wall Street Journal, Jan. 5, 2013, http://online.wsj.com/news/articles/SB10001424127887324677204578188220364231346.
Without an expression of your intent, your family may have no choice but to break into your computer and gain access to all of your online and social media accounts, risking a violation of federal or state privacy law, and also gaining access to information you might wish to protect them from. Give us a call or get in touch with us if you want to talk more about your digital estate planning.