What happens to digital assets after death?
Photo by James Clayton
I still prefer the printed word, but for many people, the fastest growing portion of their book and music libraries is stored on devices like the Amazon Kindle or iPod. But what happens to that digital content when the owner dies? More fundamentally, is “owning” an album on iTunes or a book on a Kindle the same as owning a CD or hardcover book? Most people probably do not give much thought to what will happen to these digital assets after death. After all, you say, all the decedent’s loved ones need is the proper password to access the various online accounts. True, but how many password-protected accounts do you have? I have trouble remembering all of mine, especially for those accounts that I access only occasionally.
The potential number of online assets and accompanying passwords accumulated over a lifetime can be staggering. David Goldman, an estate planning lawyer in Jacksonville, Florida, provides this list:
- E-mail accounts – Gmail, Yahoo, MSN, Comcast, AOL
- Social Networking Sites – Facebook, LinkedIn, Google+, Twitter, MySpace
- Online Storage Accounts – iCloud, Carbonite, Drop Box, mac.com
- Financial Accounts – bank accounts, stock accounts, home loans, student loans
- Photo Storage Accounts – Kodak, Flicker
- Personal or Company Websites and Blogs
- Online Business Accounts – Amazon, Walmart.com, GoDaddy.com, other online merchants
- Auction Sites – Ebay
- Music and Application Accounts – iTunes, Amazon, Android
- Virtual Property – Second Life, World of Warcraft, other role-playing identities
- Payment Services – PayPal
This list is hardly exhaustive, and the amount of digital content owned by the average person will continue to increase as technology develops. But as is often the case, the law is struggling to keep up.
When someone clicks “Buy” on the latest must-have album from iTunes, that person is getting a non-transferable license, not outright ownership. Within the terms of purchase (that no one ever reads) is something similar to that found in Amazon’s terms of use for its Instant Video service: “Amazon grants you a non-exclusive, non-transferable, non-sublicensable, limited right and license, during the applicable Viewing Period, to access, view, use and display the Digital Content in accordance with the Usage Rules, for Non-Commercial, Private Use.”
The Mac App store puts it a little more plainly: “The Mac App Store Products and App Store Products made available through the Mac App Store Service and App Store Service are licensed, not sold, to you.” As for the scope of that license, “You may not rent, lease, lend, sell, transfer redistribute, or sublicense the Licensed Application and, if you sell your Mac Computer or iOS Device to a third party, you must remove the Licensed Application from the Mac Computer or iOS Device before doing so.”
Licensing agreements such as these pose a problem for estate planning. Because the license is non-transferable, it ceases to exist when the licensee dies. This may not be a problem if the decedent had the foresight to record his passwords somewhere, but not many people do so, and that may be a violation of the agreement. For security reasons, best practice recommends changing passwords regularly, so even if heirs can track down a sticky note with a password scrawled on it, chances are it will not work.
Google’s Gmail support page warns that “[a]ny decision to provide the contents of a deceased user’s email will be made only after a careful review, and the application to obtain email content is a lengthy process.” Indeed, the person seeking to access the decedent’s account must submit by mail or fax their full name, mailing address, email address, a photocopy of a driver’s license, the Gmail address of the deceased user, the death certificate of the deceased user (including a translation if it is not in English), and proof that the applicant has received an email message from the decedent’s account. After submitting all of this information, Google “will review your request and notify you by email as to whether or not we will be able to move . . . to the next steps of the process,” which may involve obtaining a court order and/or submitting more information.
A deceased person’s Facebook page can be converted into a “memorial page” upon request from a family member, but Facebook will not provide the login information to the decedent’s family.
A few states have started to address this problem statutorily. For example, Rhode Island’s “Access to Decedent’s Electronic Mail Accounts Act” provides that an email service provider must give the executor upon request “access to or copies of the contents of the electronic mail of such deceased person.” Connecticut, Idaho, Indiana and Oklahoma have similar laws, none of which address the broad range of digital assets in sufficient detail.
The private sector is a little further along in developing a means to address these concerns. Companies like Legacy Locker provide a means to ensure that a decedent’s family can access accounts after the decedent’s death. Legacy Locker functions like an online safety deposit box, where a person can create an account, list people who are authorized to access the decedent’s information upon his death (called “verifiers”), identify online assets, and name beneficiaries. There are other similar online services such as My Webwill and Entrustet.
One promising new service is the Digital Asset Protection Trust, developed by attorney David Goldman in Florida. The DAP trust goes beyond simply providing access to the decedent’s accounts, but also “can manage these assets and allow those who you preselect to access them without violations of the license terms and without potential liability to others who may claim an interest or claim to have been harmed by the improper access and use of information contained in these assets.”
With the creation of new types of digital assets comes the issue of what happens when the owner dies. Online services provide some measure of security, and state legislatures have slowly begun to pass laws to address this issue, but there is still plenty of room for innovation and improvement.
