Digital Legacies: Who Owns Your Online Life After Death?
| Publication year | 2015 |
| Author | HEATHER ANTOINE |
HEATHER ANTOINE
Antoine Law Group, APC
If you are reluctant to talk about death, this is a good time to get over it. We have reached a point where most people understand the importance of having a will or trust. But, most have never thought about what happens to their online presence after death. The average person has twenty to twenty-five digital accounts and that number is growing.1 Eighty five percent of people around the world send and receive emails and 62 percent communicate through social networking sites.2 Seventy-one percent of people in the United States utilize a Facebook account.3 The magnitude of data collected and maintained on the Internet is staggering. But beyond interesting statistics and fodder for big data enthusiasts, why should any of this matter?
In 2011, security technology company McAfee conducted the first digital assets survey and the results were shocking. The average American Internet user valued his or her digital assets at approximately $55,000.4 Globally, the average was approximately $37,000.5 While McAfee included the emotional value placed by users on their assets, these accounts have financial value. How does a beneficiary, representative, fiduciary, or trustee access these properties? Do they have a right to access? And are there laws governing digital legacies? Accessing a decedent's digital legacy may violate copyright law, privacy rights, trade secret law, and the federal Stored Communications Act.
Digital assets are those that exist only in digital form and are thus, typically, held by a third-party service provider. Some examples include: E-mail, social networking, digital music libraries, blogs, websites, e-commerce accounts (Amazon), online auction sites (eBay), online storage accounts (Google docs, iCloud), and online payment services (PayPal). If you are not convinced about the value of these assets yet, think about social media. By accumulating followers many new media stars have been able to monetize their Instagram and YouTube pages. These pages can generate hundreds of thousands of dollars annually and more. If you are not a new media star, consider the value of virtual gaming property. Characters and accounts developed on games, like World of Warcraft and Second Life, can be sold to other players for a price. An enthusiastic gamer paid $16,000 for a coveted Sword of Wulin before the game, Age of Wulin, was even released.6 Most importantly though, digital assets include intellectual property rights associated with digital property and domain names, which can quickly add value to an estate.
Terms of Service ("ToS"), also known as terms of use or terms and conditions, are agreements drafted by Internet Service Providers ("ISPs") and website owners by which a user must abide in order to use a service. The ToS generally governs choice of law, venue, account behavior, content restrictions, and termination.
A ToS is, in fact, a contract of adhesion, which is "generally defined as a standardized contract, imposed by a party of superior bargaining strength, that provides the other party only the ability to reject or accept it."7 However, contrary to popular belief, as decided by the Supreme Court in Carnival Cruise Lines, Inc. v. Shute, contracts of adhesion are not per se unenforceable.8 The question of enforceability comes down to whether it is "both procedurally and substantively unconscionable."9 While typically procedurally unconscionable due to inequalities in bargaining power, ToS are rarely found to be substantively unconscionable since the user is provided an opportunity to review the terms and click "I agree." This undertaking provides sufficient "requisite notice to the user that a contract is being formed and the person manifests his consent."10
Some ToS contain clauses that can impact the disposition of digital assets, such as those that prohibit the transfer of an account. For example, Section 23 of Yahoo's ToS provides that "[y]ou agree that, except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this agreement."11 Also, Section 28 of Yahoo's ToS provides as follows:
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.12
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Another example is American Airlines' ToS, which makes clear that your airline miles may expire when you expire:
Mileage credit is not transferable and may not be combined among AAdvantage members, their estates, successors and assigns. Accrued mileage credit and award tickets do not constitute property of the member. Neither accrued mileage, nor award tickets, nor upgrades are transferable by the member (i) upon death, (ii) as part of a domestic relations matter, or (iii) otherwise by operation of law. However, American Airlines, in its sole discretion, may credit accrued mileage to persons specifically identified in court approved divorce decrees and wills upon receipt of documentation satisfactory to American Airlines and upon payment of any applicable fees.13
Additionally, both Amazon and iTunes' ToS state that the user is provided a "nontransferable license."14 These clauses are allowed, and will control in most situations, as "state law does not generally require [digital accounts or assets] to pass via will, intestacy, or nonprobate transfer."15
When discussing digital media, these restrictions are even more important. While most people think the music they purchase online and their e-books are their property, the reality is quite different. The four largest digital media companies (Apple, Amazon, Barnes & Noble, and Google) all have End User License Agreements ("EULA") that prohibit transfer to a third party.16 Moreover, Amazon, Barnes & Noble, and Google are clear that digital media is only licensed to a user.17 Thus, when a user dies, technically so does access to these assets. This adds an additional barrier to retrieving a decedent's digital assets.
In 1986 the Electronic Communications Privacy Act ("ECPA") was enacted, along with its component law, the Stored Communications Act ("SCA").18 The SCA "created privacy rights to protect the contents of certain electronic communications and files from disclosure by certain service providers."19
Section 2701 of the SCA provides criminal penalties for violation of this law. Anyone who:
Intentionally accesses without authorization a facility through which an electronic communication service is provided or...in-tentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished...."20
Section 2702 of the SCA sets its aim at two types of online services, "electronic communication services" and "remote computing services."21 This thirty-year-old definition seems to rely on a distinction between a service provider that provides communication services, and one that provides storage services.22 Most ISPs now perform both functions and will typically fall under the purview of the SCA. In this context, an ISP may release content information "with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of a remote computing service."23
Generally, ISPs are prohibited from "divulg[ing] to any person or entity the contents of any communication which is carried or maintained on that service."24 However, ISPs are permitted to share "non-content" information, such as log data and the name and email address of the recipient, with any person or entity other than a governmental entity, or with a governmental entity, provided an account holder's "lawful consent" was provided.25 In addition, since ECPA does not apply to private e-mail service providers, some businesses and universities can freely disclose content and non-content information.26
Without delving too far into the history of this thirty-year-old statute, it is important to...
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