The scope of digital estates is growing by leaps and bounds. Parents are registering domain names for their unborn children1 and social media sites are creating cyber cemeteries where friends and family can visit the last online impression of the dearly departed.2 The majority of transactions in modern society are created and deposited in digital environments operated by third parties on remote sites.3 Yet, the rights of users and their inheritors to that content are not clearly spelled out in statutes or court decisions.
Virtual property represents a tripartite relationship among: (1) the user or creator; (2) the third party service that provides the environment for creating and communicating; and (3) the people with an interest in the decedent’s estate or the affairs of the incapacitated. The valuation of this type of property is at the heart of many facets of law, such as intellectual property, trust and estates, criminal law (e.g., virtual homicide and theft),4 torts, and taxation (e.g., income valuation of digital assets or virtual wealth). The bottom line is who owns user content? And who will have posthumous rights of access and use?5
One scholar has characterized digital ownership rights as divided between creations made within the environment of a third party site that belong to the host and the value of those creations that are vested in the user.6 The central tension seems to be between contract law, founded on Terms of Service agreements, and property law, which represent the materialization of virtual assets. Other areas of law might also come into play, but everything hinges on the extent that real world jurisprudence can be applied to online environments in the administration of digital assets.
This article gathers current research about digital content ownership and disposition rights at the points where the life cycle has been interrupted or concluded.
Cyberspace When You’re Dead, N.Y. Times, Jan. 5, 2011
“Suppose that just after you finish reading this article, you keel over, dead. Perhaps you’re ready for such an eventuality, in that you have prepared a will or made some sort of arrangement for the fate of the worldly goods you leave behind: financial assets, personal effects, belongings likely to have sentimental value to others and artifacts of your life like photographs, journals, letters. Even if you haven’t made such arrangements, all of this will get sorted one way or another, maybe in line with what you would have wanted, and maybe not.”
Cyber Nation: Protecting Your Digital Afterlife, WCTV.tv, Nov. 19, 2010
“Many of us keep our online usernames and passwords written in a notebook or even locked away in our own minds, but many companies are starting to look at the afterlife of the digital world and what happens when we’re not here to watch over those accounts.”
Death Leaves Online Lives in Limbo, USA Today, March 16, 2009
“With online social networks becoming ever more important in our lives, they’re also becoming an important element in our deaths. . . . There’s even a tiny industry that has sprung up to help people wrap up their online contacts after their deaths.”
Digital Estates: The New Frontier, Forbes, Feb. 23, 2011
“How much time do you spend on the Internet? Chances are that you make some of your most important decisions online – or at least in front of a computer – and that your ‘digital life’ should be reflected in your estate plan.”
Don’t Take Passwords to the Grave, MSN Money, Feb. 2, 2011
“If you die or become incapacitated without sharing the keys to your digital life, your family could face a huge ordeal trying to manage your affairs. They could be cut off from money to pay your bills, and they might not even know which bills need to be paid. They might not discover some accounts exist if you’ve gone paperless. They would likely have to go to court to win access to your financial accounts, then face skeptical customer-service representatives who may not accept their authority.”
Estate Planning for Your Digital Assets, Law Practice Today (ABA), March 2010
“Given the wealth of information we have housed on our computers and the Internet today, smart estate and succession planning includes addressing how to handle digital assets.”
Forever Online: Your Digital Legacy, New Scientist, May 2011
“Your photos, status updates and tweets will fascinate future historians. Will these online remains last forever? In this special report, newscientist.com editor Sumit Paul-Choudhury – for whom these are not idle questions – reports on life, loss, memory and forgetting in the internet age.”
How to Pass on Your Passwords, Fin. Times, April 14, 2010
“According to Deven Desai, associate professor at the Thomas Jefferson School of Law in California: ‘It is becoming a more and more pertinent problem because the first wave of people who were heavily online are now dying. It is not just youths killed in a war, but people between 40 and 70 who had a lot of things online.'”
Life After Death: Why Digital Immortality Is Now an Important Factor in Estate Planning, N.C. J.L. & Tech. Blog, Feb. 17, 2011
“‘Web, mobile and social-media use keeps exploding; everyone still dies.’ Despite this assurance, only one third of Americans die testate. Many view wills as an instrument used by the rich and famous to perpetuate their fortunes. However, there is a type of asset with which everyone is rich and continues to grow more prosperous: virtual wealth.”
Okla. Social Media Law May Set Trend, KOCO.com, Nov. 28, 2010
“A new Oklahoma law giving estate executors control over the social networking profiles of dead people might conflict with terms of service agreements but its co-author said it still could be useful in encouraging people to consider what might happen to such profiles after they die.”
Who Keeps Your Facebook, eBay Information When You Die?, HULIQ, Jan. 27, 2011
“Courts and legislatures around the United States are being asked to address how to give survivors the right to close accounts and retrieve information about their loved ones, if there is no specific mention of it all in a will or living trust document. The name ‘digital assets’ is being used to describe the potential treasure trove of personal information left floating on the Internet.”
You Need an Online Estate Plan, Wall St. J., July 19, 2009
“With an increasing portion of our personal lives stored online in password-restricted accounts — including bank accounts, automatic bill-pay arrangements, personal messages and even items with small monetary but major sentimental value, such as photos — piecing together an estate after a death can cause major headaches.”
Your Digital Afterlife (Charlotte Talks NPR), Apr. 15, 2011
“Most Americans have a rich digital life. We post pictures of our families, we make political and social comments and we have many online accounts that include personal information. In such a complex digital world one emerging issue is what happens to our digital life when we die? How much of our digital life do we own, if any, and how do loved ones manage social sites or online accounts when a family member dies? There is an emerging field of lawyers and consultants on the digital afterlife and Actor’s Theatre in Charlotte is even presenting a play, Dead Man’s Cell Phone that explores this concept. We connect to the digital afterlife.”
Journals and Books
Beyond the Digital Asset Dilemma: Will Online Services Revolutionize Estate Planning?, 24 Quinn. Prob. Law Jour. 376 (2011)
“This Note focuses on one of the most promising and potentially problematic uses of DEP [Digital Estate Planning] services: transferring online account login credentials to another upon death. The promise and potential danger rests in the compelling way DEP services solve the ‘digital asset dilemma’ faced by all users of online services: the need to pass the contents of online accounts to heirs when such accounts are accessible only with usernames and passwords that often remain private during one’s lifetime. Although it is unclear whether online accounts are legally inheritable, individual online service policies and a few recent statutes seem to indicate that survivors have, at a minimum, an inheritable interest in the contents of an online account. However, the transfer of a decedent’s private account login information to a successor, through a DEP service or otherwise, grants the recipient full use of the account, not just access to the information contained within. Individuals may use a DEP service to solve the digital asset dilemma, but some may incorrectly conclude that they are legally transferring the account itself. In addition, people may mistakenly believe that they can use DEP services to legally transfer property of all types, when in fact, the legality of any attempted DEP service transfer is far from certain.”
Copyright Conundrum: Protecting Email Privacy, 55 Kan. L. Rev. 501 (2007)
“The practice of email forwarding deprives email senders of privacy. Expression meant for only a specific recipient often finds its way into myriad inboxes or onto a public website, exposed for all to see. Simply by clicking the ‘forward’ button, email recipients routinely strip email senders of expressive privacy. The common law condemns such conduct. Beginning over two-hundred-fifty years ago, courts recognized that authors of personal correspondence hold property rights in their expression. Under common-law copyright, authors held a right to control whether their correspondence was published to third parties. This common-law protection of private expression was nearly absolute, immune from any defense of ‘fair use.’ Accordingly, the routine practice of email forwarding would violate principles of common-law copyright. The issue of whether common-law copyright today protects email expression turns on whether the Federal Copyright Act preempts common-law copyright. The Copyright Act includes a fair-use defense to infringing uses of unpublished works, and that defense likely applies to email forwarding. A strong argument exists, however, that the Act does not preempt common-law rights of expression which protect privacy. Federal preemption extends only as far as the Constitution permits. According to the Copyright Clause in the Constitution, federal property rights in expression are limited to rights that forward a utilitarian end. Rights of privacy do not forward a utilitarian end. The Act should therefore be construed as not preempting common-law copyright’s protection of privacy. Email forwarding must yield to privacy protection.”
Digital Life after Death: The Issue of Planning for a Person’s Digital Assets after Death (SSRN 2010) [To be published in Est. Plan. & Community Prop. L.J.]
“‘Digital Life After Death: The issue of planning for a person’s digital assets after death,’ author John Connor discusses the concept of a digital asset and what happens to these assets when the owner dies. First, Connor lays the foundation to define what a digital asset is and why these assets can create problems in estate planning. Next, the author examines how various social networking sites, e-mail providers, and blog hosting sites are dealing with the concept of digital assets.
Connor then provides possible solutions for dealing with digital assets. These solutions include: planning for digital assets prior to death, leaving instructions (including usernames and passwords) on how to access digital assets in the event of death, setting up a trust in which the usernames and passwords can be stored and accessed by the trustee and eventual executor, and possibly providing some information about digital assets in a will. Finally, the author describes the consequences of failure to provide for your digital assets after death.”
Digital Property: Planning for Incapacity and Death, 36th Annual Minnesota Probate & Trust Law Section Conference, June 7, 2010
“The purpose of this article is to introduce family members, fiduciaries and their advisors to the types of digital property that they need to locate and access as they deal with an individual’s incapacity or death. This article will discuss the different categories of digital property in today’s world, how to locate it and access it, and how to prioritize which digital property needs urgent attention.”
Privacy and Security During Life, Access After Death: Are They Mutually Exclusive?, 62 Hastings L.J. 1037 (2011)
“The Internet has transformed the way we live our lives. What we have not yet fully realized is how it will impact what happens after we die. Specifically, the migration of financial services online, and the corresponding elimination of paper records, will hamper access to a decedent’s financial assets and may eliminate knowledge of their existence entirely. This Note explores how federal financial and internet privacy laws affect the disclosure of a person’s private financial information and offers solutions for reconciling lifetime privacy interests and the desire for access after death.”
Virtual Inheritance: Assigning More Virtual Property Rights, 2009 Syracuse Sci. & Tech. L. Rep. 57 (2009)
“Increasingly, our daily lives revolve around and rely on the Internet and digital world. We will inevitably accumulate some amount of virtual wealth in the form of email accounts, social networking profiles, and even digital replicas (or avatars) of ourselves. As we populate the Internet with traces of our lives, the ugly truth is that none of that virtual wealth really or absolutely belongs to us. This note explores the concept of ‘virtual inheritance,’ or the idea of transferring one’s virtual property rights–a right to which we should be entitled. By revealing how the right to transfer is frustrated in the virtual game world context, this note will bring to light the growing need for a legal framework that would acknowledge an individual’s right to one’s virtual property.”
What Happens to Your Digital Life When You Die?, N.Y. L.J., Jan. 27, 2011, at 5
“[O]ne of the neglected ensigns of internet citizenship is advanced planning. When people die, there are virtual secrets that follow them to the grave — the last refuge of privacy in a transparent society. Courts and legislatures have only begun to reckon with the disposition of digital assets when no one is left with the knowledge or authority to conclude the business of the cyber-afterlife.”
Who Owns A Decedent’s E-Mails: Inheritable Probate Assets or Property of the Network?, 10 N.Y.U. J. Legis. & Pub. Pol’y 281 (2006/2007)
“This Article is divided into six parts: Part II outlines some copyright basics and addresses the copyright status of e-mail messages as well as the current de facto control of e-mail by service providers independent of copyright implications. Part III suggests bailment law as an appropriate framework for the analysis of the legal status of e-mail held by a third party, and also offers comparisons to warehouse law and the law of safe deposit boxes. Part IV summarizes the current legal status of e-mail, explains why privacy arguments may be inapposite in the case of a decedent’s e-mail, and sets the stage for the recommendations in Part V. Finally, in Part VI, the Article concludes with a comparison of e-mail to paper and pen (first class) letters and their attendant ownership and intellectual property interests. The article suggests that e-mail, as a unique kind of property, has not been given sufficient legal protection as an inheritable probate asset and that legislative action could provide some much needed certainty in this developing area of law.”
Your Digital Afterlife: When Facebook, Flickr and Twitter Are Your Estate, What’s Your Legacy? (New Riders Press 2010)
“Written by the creators of TheDigitalBeyond.com, this book helps you secure your valuable digital assets for your loved ones and perhaps posterity. Whether you’re the casual email user or the hyper-connected digital dweller, you’ll come away with peace of mind knowing that your digital heirlooms won’t be lost in the shuffle.”
“John [Romano] and Evan [Carroll] . . . created The Digital Beyond—thedigitalbeyond.com—as a think tank for digital death and legacy issues. The site has grown into the go-to source for digital afterlife information. The New York Times, NPR’s Fresh Air, Obit magazine, NPR’s Here and Now, Fox News and The Atlantic have featured John and Evan and their work with The Digital Beyond and Your Digital Afterlife. In November 2009, they appeared on CNN in a featured video story, ‘Planning Your Digital Afterlife.’ They returned to SXSW [South By Southwest conference] in 2010 to host another session called ‘Become Immortal: Understanding the Digital Afterlife’ and again in 2011 to lead the panel, ‘You’re Dead, Your Data Isn’t: What Happens Now?'” [source: Your Digital Afterlife]
“Digital Passing is a blog covering the intersection between estate planning (planning for a person’s incapacity and death) and the digital world (passwords, online accounts, intellectual property, and other digital property).The purpose of this blog is to introduce family members, fiduciaries (a guardian, conservator, executor, personal representative, trustee, attorney–in–fact, etc.), and their advisors (a lawyer, accountant, financial advisor, etc.) to the types of digital property that they need to locate and access as they deal with an person’s incapacity or death. . . . This blog was created by and is maintained by James D. Lamm, a third–generation Minnesota estate planning attorney and a principal in the Trust, Estate & Charitable Planning group at the Gray Plant Mooty law firm in Minneapolis, Minnesota.”
Wills, Trusts & Estates Prof Blog
This site reports on recent news and scholarship in trusts and estates practice, including the newly emerging area of digital estate law. For specific news in this area see the sections on Web/Tech and Technology. The editor is Gerry W. Beyer, Governor Preston E. Smith Regents Professor of Law, Texas Tech Univ. School of Law. The blog is a member of the Law Professor Blogs Network.
1 See Would You Want a Digital Footprint From Birth?, AVG Official Blog, Oct. 6, 2010 (“[W]e [AVG] polled mothers with Internet access who have children under two in the five major EU States (UK, France, Germany, Italy, Spain), the USA, Canada, Australia, New Zealand and Japan. We asked them when they uploaded pictures of their children and what motivated them to do so.”); Digital Births Global Survey (AVG 2010) (“Uploading ante-natal scans, giving children an online album from birth, and in some cases even creating email addresses for babies – today’s parents are increasingly building a digital footprint for their children from the moment they are born.”)
2 See Laura M. Holson, For Funerals Too Far, Mourners Gather on the Web, N.Y. Times, Jan. 24, 2011 (“Several software companies have created easy-to-use programs to help funeral homes cater to bereaved families. FuneralOne a one-stop shop for online memorials that is based in St. Clair, Mich., has seen the number of funeral homes offering Webcasts increase to 1,053 in 2010, from 126 in 2008 (it also sells digital tribute DVDs).”); Jesse North, Parents of Dead Students Use Facebook to Reconnect, N.Y. Times, Nov. 27, 2007.
3 See generally Kathryn Zickuhr, Generations and Their Gadgets, Pew Internet, Feb. 3, 2011 (“Many devices have become popular across generations, with a majority now owning cell phones, laptops and desktop computers. Younger adults are leading the way in increased mobility, preferring laptops to desktops and using their cell phones for a variety of functions, including internet, email, music, games, and video.”).
4 The advent of personal life logging through implanted medical devices or data chips might open the door to new dying declarations and other kinds of testimony harvested from subcutaneous black boxes at the time of a person’s death or incapacity. See generally Microchip Implant to Link Your Health Records, Credit History, Social Security, BNet, Oct. 5, 2009.
5 Cf. Ray D. Madoff, The New Grave Robbers, N.Y. Times, Mar. 27, 2011 (“For most of this country’s history, a person’s identity was not something that could be owned. While the unauthorized use of someone’s name or image was sometimes barred as an invasion of privacy, the right belonged to that person alone and could not be assigned to others. It was not until 1953, in a case involving baseball players licensing their images for use on baseball cards, that American law first constructed identity as a property interest that could be sold or licensed. This interest became known as the right of publicity. Today the right of publicity clearly allows people to control the commercial use of their names and images during their lives. What happens after death is much murkier.”).
6 See Olivia Y. Truong, Virtual Inheritance: Assigning More Virtual Property Rights, 2009 Syracuse Sci. & Tech. L. Rep. 57, 78 (2009)(The author went on to review the efficacy of a lease/license model for virtual content, especially as it might be transferred post-mortem; and other scenarios, such as the right to ownership and access to email but not the transference of accounts. The key point is that in cyberspace “the ownership of e-information is linked with the ownership of the medium, a server in which the data is stored.” Id. at 84.).