Article on Digital Asset Disposition
Alberto B. Lopez recently published an Article entitled, Death and the Digital Age: The Disposition of Digital Assets, 3 Savannah L. Rev. 77–89 (2016). Provided below is a summary of the Article:
If being a personal representative was not sufficiently difficult, the advent of the digital age has only increased the burdens placed on those willing to undertake the role on behalf of a decedent. The seemingly ever-expanding usage of digital devices means that individuals increasingly handle many routine aspects of life online. Banking, shopping, and communication are done, at least in part, online by a substantial number of people. For personal representatives, a decedent’s online footprint creates access difficulties because many online accounts are password protected. A decedent may have received and paid utility bills, for example, via an online account without any paper record of the transaction; therefore, a personal representative may have trouble closing an account with a utility provider without the account’s password. Given the number of online accounts used by most people, living individuals may have trouble remembering their own usernames and passwords, let alone finding such information for an unknown number of online accounts held by a decedent.
Even if passwords are discovered by a personal representative, accessing the account may be construed as a violation of the terms of the service agreement between a decedent and a service provider. For example, Karen Williams sought access to her son’s Facebook account following his death, but did not have the password to the account. Eventually, Williams gained access to the account after receiving “a tip” from one of her son’s friends. Accessing her son’s account, however, violated Facebook’s terms of service regarding unauthorized access; therefore, Facebook changed the password to the account thereby barring William’s access. In response, Williams brought suit to regain “full and unobstructed” access to her son’s account. Although the court ruled in her favor, the relief granted Williams only ten months of access to the account. At the expiration of the ten-month access period, Facebook terminated the account.