Virginia Lawyer

VaLawyer_June/July 2013

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Consultus Electronica Digital Property Planning: A New Frontier by Deborah G. Matthews, Sharon D. Nelson, and John W. Simek © 2013 Sensei Enterprises Inc. A decade ago, there was no Facebook. It seems to many, especially the young, as though it has been here forever, but it has not. Our children simply don't remember a non-digital life. Much of the world has changed — especially the online world — in the last ten years. Like it or not, it is a new and uncharted frontier. The Internet has profoundly changed our lives and there is no going back. Even those with no desire to enter the digital frontier are being forced there. No longer can recipients of Social Security and other benefits opt to have a paper checks mailed with the U.S. Department of Treasury's all-electronic initiative. Most people have no understanding of the digital property they own, and even less understanding of what may happen to those assets if they die or become incapacitated. The Definition of Digital Assets Wouldn't it be nice if we had a standard definition? Dream on. Even if we did, technology would continue to morph and our definition would be outdated. We can't even seem to agree on whether to call it "digital assets" or "digital property"— for the moment, the terms seem to be used interchangeably. Digital property is everywhere and what it constitutes is broad — e-mail, texts, social media posts, online accounts (including real life value of some assets in virtual worlds such as Second Life), videos, passwords and IDs to access sites, data you may have on shopping, financial and other sites, electronic documents (think of your old tax returns as an example), online backups, photo collections, etc. To the dismay of many, it does not include your iTunes music collection, e-book reader books, or movies you downloaded because you purchase 50 VIRGINIA LAWYER | June/July 2013 | Vol. 62 only a license — you don't own the music, books, or movies. You may well have licensed them for all of your life, but the licenses typically expire when you die. It is beyond the scope of this article to tell you how each site or online provider will handle your data in the event of your death or incapacity. You actually have to read the Terms of Service (ToS) for each site to see whether an executor may have access to the data, may memorialize your site, may remove it, or whether your site will terminate automatically after a given period of inactivity, etc. Even where an executor may be allowed some power with relation to digital property, a court order may be required under the ToS which can make managing the assets costly. Google has forged ahead of others and announced in April of 2013 that users can control how Google Accounts are to be handled if they've been left inactive for any reason. With Google's Inactive Account Manager (IAM), the user can decide the length of the timeout period or how long after the last use the inactive period will start with choices of three, six, nine, or twelve months. Then IAM will send the user a text or e-mail alerts toward the end of the timeout period in advance of the inactive period starting. IAM also permits the user to name as many as ten people as a "trusted contact" and Google will notify them that the account is no longer being used. The user can also give trusted contacts access to data. This doesn't mean a trusted contact can start sending e-mail as the user. They are not provided with passwords — just data. A user can also choose to instruct Google to automatically delete all data when the user's specified inactive period is reached. This addresses concerns some have regarding the user's privacy. IAM directions apply to personal accounts such as Gmail, Contacts, Circles, Drive, Google+ Profiles, Pages, Picasa, Google Voice, and YouTube but not Google Apps accounts. We love the name "IAM" and the irony that it is intended for use when "you are not." IAM is on a user's Google Account setting page. For details, see http://dataliberation.blogspot.com/2013/ 04/plan-your-digital-afterlife-with.html. In this bizarre modern world, you can schedule Facebook, LinkedIn, and tweets to post after you die. Check out the possibilities at http://www.deadsoci .al/. The free service claims it will guarantee the delivery of messages for the next 100 years and requires users to appoint a trusted executor. An Israeli site called "If I Die" allows you to send personal messages as well as public Facebook messages and already has 200,000 users. One suggestion the site makes is that you use its services to send all your passwords to a trusted representative after death. The site can be found at http://www.deadsoci.al/. A truly strange service is provided by _LivesOn, which uses artificial intelligence to tweet after your death. In one of the weirdest advertising tag lines of all times, the service promises "When you heart stops beating, you'll keep tweeting." It's still in beta testing, but wow, dead people tweeting? And what are the implications for assets that continue to expand posthumously? A good resource in this area is http://www.thedigitalbeyond.com/, where you can find updates on state digital assets laws as well as a list of online services that help you prepare for what it calls "your digital afterlife." www.vsb.org

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