Your Digital Footprint Left Behind at Death: An Illustration of Technology Leaving the Law Behind

Author:Sandi S. Varnado
Position:Associate Professor of Law, Loyola University New Orleans College of Law
Pages:719-775
 
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Your Digital Footprint Left Behind at Death: An
Illustration of Technology Leaving the Law Behind
Sandi S. Varnado
INTRODUCTION
“Death in the digital age is a lot more complicated than it used to
be.”1 Americans spend a substantial portion of their waking hours on
some sort of electronic device, with a large amount of that time spent
online.2 Recent studies reveal that an estimated 85% of American
adults use the Internet3 and spend an average of 23 hours a week (or
14% of the time available in a week) online.4 The figures are even
higher for young American adults. Ninety-eight percent of 18 to 29
Copyright 2014, by SANDI S. VARNADO.
Associate Professor of Law, Loyola University New Orleans College of Law.
I would like to thank Loyola University New Orleans College of Law for the research
grant to support the writing of this Article. I would also like to thank several people
who read and commented constructively on dra fts of this article: Hillary Allen,
Andrea Armstrong, John Blevins, William R. Corbett, Johanna Kalb, and Monica
Wallace. Additionally, I would like to thank Steven Gallo, Claire Noonan, and
Stephanie Riemer for their excellent research assistance.
1. Patrick Marshall, Digital Estate Planning Often Forgotten, SEATTLE TIMES
(Jan. 7, 2012, 8:00 PM), http://seattletimes.com/html/businesstechnology/20171
71847_pfdigitalestates08.html [http://perma.cc/T8GQ-U5PH] (archived Mar. 4,
2014).
2. One recent article indicates that Americans spend more than 28 hours per
month on the Internet on a computer, nearly 6 hours on online videos, more than 5
hours on mobile videos, and nearly 6 1/2 hours on a gaming console. Sarah Perez,
Nielsen: TV Still King in Media Consumption; Only 16 Percent Of TV Homes Have
Tablets, TECH CRUNCH (Jan. 7, 2013), http://techcrunch .com/2013/01/07/nielsen-tv-
still-king-in-media-consumption-only-16-percent-of-tv-homes-have-tablets/ [http:
//perma.cc/3VKB-RDDQ] (archived Mar. 4, 2014). A different study notes that
American adults spend a little more than 5 hours per day on digital media. Alexis
Kleinman, Americans Will Spend More Time on Digital Devices Than Watching TV
This Year: Research, HUFFINGTON POST (Aug. 1, 2013), http://www.huffingtonpost
.com/2013/08/01/tv-digital-devices_n_3691196.html [http://perma.cc/474A-U3ZV]
(archived Feb. 24, 2014).
3. Internet Use Over Time, PEW INTERNET, http://www.pewinternet.org/data-
trend/internet-use/internet-use-over-time (last visited Mar. 12, 2014) [http://perma
.cc/QA4M-VDCP] (archived Mar. 12, 2014). Close to 300 million total Americans
use the Internet. Chelsea Ray, ‘Til Death Do Us Part: A Proposal for Handling
Digital Assets After Death, 47 REAL PROP. TR. & EST. L.J. 583, 586 (2013) (putting
the number at 289,309,000).
4. David Mielach, Americans Spend 23 Hours Per Week Online, Texting, BUS.
NEWS DAILY (Jul. 2, 2013, 12:14 PM), http://www.businessnewsdaily.com/4718-
weekly-onlin e-social-media-t ime.html [http://perma.cc/3B2U-5ACX] (archived Feb.
24, 2014). See also Jamie P. Hopkins, Afterlife in the Cloud: Managing a Digital
Estate, 5 HASTINGS SCI. & TECH. L.J. 209, 217 (2013) (stating that the average U.S.
internet user spends a lmost 68 hours per month online).
720 LOUISIANA LAW REVIEW [Vol. 74
year olds and 92% of 30 to 49 year olds use the Internet.5 More than
75% of Internet users check their e-mail, texts, Facebook, and
Instagram every day.6 Almost inadvertently, America has begun to
lean more and more toward a predominantly digital culture,7 and many
predict that this trend is going to continue.8 This interaction with
computers9 has impacted American society and the law, and in many
circumstances, the law, still set in the pen and ink era, simply fails to
5. Internet Use Over Time, supra note 3. Although recent studies show t hat
92% of Americans have an online presence by the time they are two years old, Maria
Perrone, Comment, What Happens When We Die: Estate Planning of Digital Assets,
21 COMMLAW CONSPECTUS 185, 185 (2012), those over the age of 65 are a fast-
growing population of online users. Gerry W. Beyer & Naomi Cahn, Digital
Planning: The Future of Elder Law, 9 NAELA J. 135, 136 (2013) [hereinafter Beyer
& Cahn, Digital Planning]. The latter group also spends more money on technology
and online shopping than any other demographic. David Goldman & Charles
Jamison, The Future of Estate Planning: The Multigenerational Life Plan, 5 EST.
PLAN. & COMMUNITY PROP. L.J. 1, 9 (2012).
6. Mielach, supra note 4.
7. EVAN CARROLL & JOHN ROMANO, YOUR DIGIT AL AFTERLIFE: WHEN
FACEBOOK, FLICKR AND TWITTER ARE YOUR ESTATE, WHATS YOUR LEGACY? 2
(2011).
8. Frank S. Baldino, Estate Planning and Administration for Digital Assets,
MD. B.J., Nov./Dec. 2012, at 28, 29; Tom H. Cantrill, Jean Gordon Carter, J. William
Gray, Jr., Katherine E. Ramsey & Michael Anderson, Tweeting from Beyond: What
Happens to Your Digital Assets When You Are Gone?, LEXOLOGY (Aug. 22, 2012),
http://www.lexology.com/library/detail.aspx?g=073d2e08-93c2-414e-acee-144bc
058bef1 [http://perma.cc/WD9V-VNML] (archived Feb. 24, 2014) (“[W]ith each
passing year more of your life goes digital and in increasingly complex ways.”); John
Conner, Comment, Digital Life After Death: The Issue of Planning for a Person’s
Digital Assets After Death, 3 EST. PLAN. & COMMUNITY PROP. L.J. 301, 31415
(2011) (after providing statist ics from 2010, claiming that “[p]erhaps the most
interesting thing about these numbers is that they continue to grow, and the pace at
which they are growi ng has not even begun to decl ine”).
9. In the interest of brevity, this Article uses the term “computer” in the
vernacular sense here and throughout the rest of the Article. From here forward, this
term shall include desktop computers, laptop computers, tablets, and smartphones, as
well as storage hardware like external hard drives, and computer media like CDs,
DVDs, flash drives, etc.
2014] DIGITAL FOOTPRINT 721
keep pace with technology.10 Such is the case with regard to one’s
digital footprint at death.11
A “digital footprint,” for purposes of this Article, is broadly
defined to collectively include any and all files and accounts, whether
stored locally or online.12 This includes any digital item such as a
person’s digital information, digital assets, digital accounts, and digital
estate.13 Digital items may simply be the means by which to access
10. Noam Kutler, Protect ing Your Online You: A New Approach to Handling Your
Online Persona After Death, 26 BERKELEY TECH. L.J. 1641, 1651 (2011) (“The use of
the Internet has exploded in recent years, leaving the la w to catch up with many new
issues.”); Gerry W. Beyer, Estate Planning in the Dig ital Age 1 (2013) (working paper),
available at http://ssrn.com/abstract=2166422 (“[T]he pace of techno logy is faster than
the law can adapt.”); Stephen S. Wu, Digital Afterlife: What Happens to Your Data
When You Die? 4 (2013), available at http://dataedge.ischool.berkeley.edu/2013
/pdf/digital-afterlife-white-paper.pdf [http://perma.cc/7UBU-S7FS] (archived Feb. 24,
2014) (“Technology is always far ahead of the progress of the law . . . .”).
11. Rachel Ehrenberg, Computer Scientists Grapple with How to Manage the
Digital Legacy of the Departed, SCIENCENEWS (June 10, 2013, 10:19 AM),
http://www.sciencenews.org/view/generic/id/350909/description/Computer_scientists
_grapple_with_how_to_manage_the_digital_legacy_of_the_departed [http://perma
.cc/EB44-M HJC] (archived Feb. 24, 2014) (“But communication and privacy laws have
yet to catch up with technology.”); CARROLL & ROMANO, supra note 7, at 57 (“[O]ur
cultural and l egal mechanis ms for passin g along assets h aven’t changed to include
digital assets.”). Of course, this issue is not limited to America. See, e.g., Tobi Cohen,
Lawyers Raise Questions About Dig ital Data Rights After the Owner’s Dea th,
CANADA.COM (Aug. 20, 2013, 4:48 PM), http://o.canada.com/news/national/lawyers-
raise-questions-about-digital-data-rights-after-the-owners-death/ [http://perma.cc
/EZ5G-9XSK] (archived Feb. 24, 2014) (discussing the issue from a Canadian
perspective); Gerry W. Beyer, Who Gets Access to Your Facebook When You Die?,
WILLS, TR. & EST. PROF BLOG (Aug. 20, 2013), http://lawprofessors.typepad.com
/trusts_estates_prof/2013/08/who-gets-access-to-your-facebook-when-you-die.html
[http://perma.cc/8A4G-M6HG] (archived Feb. 24, 2014) (discussing Asia and
Europe).
12. I have chosen the term “digital footprint” purposefully and defined it herein
to avoid inadvertently narrowing the scope of this Article by the use of such terms as
“digital information,” “digital asset,” “di gital account,” or “digital estate.”
13. “Digital information” has been defined as “representative of (or enable s
control over) traditional forms of intangible perso nal property such as bank and
brokerage accounts, stocks, bonds, mutual funds and other intangible investments for
which the record-keeping, reporting or management functions are online, either in
part or in whole.” Christopher D. Fidler, Tools for Digital Assets and Digital
Information, LEXOLOGY (June 5, 2013), http://www.lexology.com/library/detail
.aspx?g=00651ac6-d3b0-480a-adf8-a73f868f7eab [http://perma.cc/9HT2-PCNA]
(archived Feb. 24, 2014). As commentators have recognized, there is no current
definition of “digital assets” that is clear and universal. Conner, supra note 8, at 303;
Kristina Sherry, Comment, What Happens to our Facebook Accounts When We Die?:
Probate Versus Policy and the Fate of Social-Media Assets Postmortem, 40 PEPP. L.
REV. 185, 207 (2012) (noting that the term “is already vague” and “is continuously
broadening to incorporate once-tangible assets now undergoing complete digitization,
as well as previously unforeseen cyber innovations”); Perrone, supra note 5, at 188
(explaining tha t there is no uni versal definitio n of the term); B eyer, supra note 10

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