Your Digital Assets – Are You Covered? Part 2

                Last week I raised the legal issues faced by digital assets – specifically property rights.  Who owns my Facebook account after I die?  Who can access that account when I am alive but incapacitated?

                Courts are often wrestling with these issues for the first time.  State legislatures have not, in many cases, modified the laws to keep up with technological changes.  There have been a number of cases around the country in which family members of a deceased online account holder have fought to gain access to that account, some successful and others not.

                Many online companies have established rules regarding access.  For example, Facebook allows already confirmed friends to continue to access a deceased person’s account.  Yahoo’s policy is that the account expires when the accountholder dies.  Google provides that accounts can be deleted if they have not been accessed for a period of time.

                But, is that the last word?  Do the companies get to lay down the rules with regard to access and ownership?  Not necessarily.  One Michigan judge directed Yahoo to hand over a deceased Marine’s emails to his parents, who argued that he would have wanted them to see the emails.

                Some people have shared their passwords with someone they trust, such as a close family member, in the event something should happen to them.  But, that may not always work either.  Anti-hacking laws and many “term of service” agreements prohibit someone from accessing an account that isn’t their own.  Those laws may need to be modified.

                The Uniform Law Commission has attempted to step in.  The ULC is a committee that researches, drafts and promotes the passage of laws in certain areas where it makes sense to have uniformity among the states.  It is up to each state to then decide whether to adopt the laws that the ULC proposes.

                The ULC’s recommendation is that the personal representative of the deceased person be permitted access to – but not control of – a person’s digital file.  That would typically be an executor of a will or administrator of an estate where there is no will. Its proposal would establish that the law – and not any particular company’s own rules – would control the issue.   Interestingly, though, they have not addressed access to the account while the account holder is alive, such as with a power of attorney.

                It’s certainly a first step in an area that will only get more publicity as these disputes continue to present themselves.  Stay tuned.

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