A recent article from Law Vibe provided some advice regarding the legal considerations for digital estate planning. The article recognized the law’s lack of precedence for digital assets and provided some insight about different types of online content like email, blogs and social networking profiles.
As we’ve discussed before, there are two issues at play: content and access.
Content is simple. Anything that you’ve created is your intellectual property and that is governed by traditional property laws. Many sites require that you accept a terms of service document that essentially grants them ownership of your content. That’s right, you don’t legally own the contents of your Facebook profile. Most of these services allow you to cancel your account and remove the content from their servers. In February Facebook took some heat for changing their TOS document to grant them complete ownership of your content. This was to clarify that Facebook should continue to display messages you’ve sent to other people even after you cancel your profile. Their intention was not to deny you control of your own content, despite the legal terms. As long as Facebook values their users there’s a large social control that will prevent them from doing anything nefarious with your content. You should check the terms of service for your accounts and be certain of content ownership.
Access is a bit more complicated. Policies often prevent your survivors from accessing your content and this was the source of several lawsuits like the one mentioned by Law Vibe. This is where your digital executor and digital will come into play. The digital executor can help you carry out your wishes according to a document giving them passwords and instructions. It’s simple and more direct, but lacks legal standing. Law Vibe provides a good set of instructions for how to do this, but you should also check out our Digital Death Survival Guide. My only caution is that you do not list user names or passwords in your legal will. Law Vibe doesn’t mention this, but it’s important to remember that a legal will becomes a public document upon your death.
I’m pleased to see that Law Vibe is thinking about this issue. This is certainly coming to the forefront of modern law practice.