Virtual Worlds Do Not Mean Virtual Life: Death and Digital Assets

Problem: For many of us, our online presence has become substantial. Think in terms of Facebook, MySpace, Twitter, Flickr, PayPal, eBay, Gmail, Second Life … the list goes on and on, and will continue to get more complex and intertwined with our lives as each cyber year passes. Now, imagine what happens when someone dies or becomes disabled, and family members may not have either knowledge of or access to the accounts, passwords, etc. Consider the problems that can arise:

  • An eBay business needs to continue operating
  • Funds in a PayPal account cannot be accessed
  • Photographs on Flickr may need to be removed
  • Loved ones may want to notify social network contacts of the person’s death or modify a Facebook page or blog to make it a memorial page
  • Family members may want to access historical emails contained in a Gmail account or blog archives or close a social network account
  • Domain names may need to be renewed or transferred

Current State:  Some of these digital assets are personal in nature, and others are financial. However, actions in relation to these digital assets cannot be taken without first knowledge of the account and second knowledge of the user name and password.

Most providers will not release account information without a court order, and by the time the court order is obtained, the usefulness of the access to many of these accounts may be moot. Account data can of course be placed in a will, but, like instructions as to burial preferences, access to this information often cannot wait for a review of the will.

Consider this provision. Flickr is owned by Yahoo!, and both have the same Terms of Use. Here’s the relevant provision:

No Right of Survivorship and Non-Transferability. You agree that your Yahoo! account is non-transferable and any rights to your Yahoo! ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.

Currently, there is a lot of uncertainty as to the nature of digital assets and whether they are transferable under a will. Many digital assets may be categorized as intellectual property or may be financial in nature or may be considered protected by privacy considerations. However, they are also subject to the specific Terms of Use applicable to each site. To make matters worse, the outcome may vary from state to state.

Several years ago, family members sued Yahoo! for access to the email of a Marine who died in Iraq. As a result the Oakland County Probate Court issued an order directing Yahoo! to grant the access. As you can see from the Yahoo! Terms of Use quoted above, this was the only way for the family members to get access.

Difficult Questions: Service providers are in a difficult position. Email and other online accounts may contain sensitive personal information. Whose to say that the marine wanted others to access this account? Perhaps he would have preferred that the account would just be deleted. What are good reasons for giving people post-death/disability access to an account? Taking all this into consideration, it was appropriate for Yahoo! to wait for a court order, but would results in a long delay. Directions as to the disposal of such digital assets could be set forth in a will, which would at least speed up the process for obtaining a court order.

Consider the implications of the following Facebook policy:

Memorializing the account removes certain more sensitive information like status updates and restricts profile access to confirmed friends only. Please note that in order to protect the privacy of the deceased user, we cannot provide login information for the account to anyone. We do honor requests from close family members to close the account completely.

Suggestions: There are various services being created that will hold digital assets and release them upon proof of death to named persons. However, most Terms of Use documents, even if not as explicit as Yahoo!, don’t allow accounts to be transferred, don’t allow user name and password information to be disclosed to third parties and don’t permit third parties to access the accounts. Therefore, websites should consider developing a policy for dealing with this issue and individuals should plan, on an asset by asset basis, how to dispose of these assets upon death or disability. Remember, our virtual existence does not live forever.

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William Galkin manages GalkinLaw. Mr. Galkin has dedicated his legal practice to representing Internet, e-commerce, computer technology and new media businesses across the U.S. and around the world. He serves as a trusted adviser to both startup and multinational corporations on their core commercial transactions.


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