The failure to include one’s digital footprint in an estate plan renders the plan incomplete.1
—Sandi S. Varnado
You are the Chief of Legal Assistance and one of your attorneys is out unexpectedly. You get to cover down on the attorney’s appointments. The appointment calendar is full, and it looks to be a long day, but at least you are not likely to get any homework projects.
Your first appointment is a young major heading out on a deployment. He explains that he already has a will and powers-of-attorney, but just has a quick question, “I’ve had this blog since college. I post two or three times a week, primarily on Ohio state politics, but sometimes on sports or movies, or other things like that. I don’t make any money on it at the moment, but based on my traffic stats, I know I could if I started selling ads.2 What do I need to do to make sure my wife is able to access the blog in the event of my death?” You advise him that you will research the question and get back to him.
The next appointment is an older specialist. Her will is simple, except for one request. She explains that she has two email accounts, one for family and one for college and Army friends, “This other girl in my creative writing program went into the Navy, and we have an agreement that, if either of us dies in uniform, the other will receive all their personal papers and attempt to write a novel based on their military career. So basically, I want it formalized and legally required that, in the event of my death, number one, Petty Officer Smith gets total access to my ‘friends and colleagues’ email account, but also that, number two, my mom no-how, no-way has any possible access to my electronic correspondence with my battle-buddies or college or grad school classmates.” You advise her that you will research the question and get back to her.
The final appointment of the morning is a private first class who does not have any questions. Coming back from the printer, you notice that he appears to be posting a photo of your colleague’s candy dish to an Instagram account,3 and you consider asking him about his use of social media generally. But you are unsure of what you should ask or what advice you would give him based on his answers.
Before lunch, you go online to search The Army Lawyer archives, hoping to find a primer that will help you start answering the morning’s questions. This article aims to serve as that primer. The rest of the article discusses digital assets and the general challenge involved in planning for and managing their disposition, some of the applicable law in greater depth, and recommendations for a generally useful planning process.
Something is “digital” when it is made of numbers—especially the numbers 0 and 1.4 Things made of numbers are naturally and usefully thought of as being equivalent to physical objects that serve the same purposes (e.g., documents, files, books, locks and keys, currency).5 Estate planners and financial advisors view such digital items as a special category of assets.6
As discussed later, most states have recently defined the term “digital assets” in a statute.7 However, estate planners and commentators often define “digital assets” as needed for their planning, advice, or argument.8 Probably the best definition comes from wikipedia: “anything that exists in a binary format and comes with the right to use.”9 Collectively, an individual’s “digital assets”10 comprise his or her “digital estate.”11
Digital assets include much of what one might expect: digital music files, e-books, emails, blog posts, web-stored photo-albums, domain names.12 Other digital assets might escape immediate notice. Consider, for example, that a decedent’s (or incapacitated person’s) PayPal, eBay, or Amazon account might have money left in it, or owed to it.13 Obviously, any Soldier, Family member, or military retiree is likely to possess a digital estate.14 For many, the financial value of their digital assets will exceed that of their other tangible assets.15 Of course, as with real estate and personal property, owners might value their digital assets for emotional or psychological reasons apart from financial considerations.16
While similar to other kinds of assets in the use and value they can have for their owners, digital assets also differ from them in some important ways. For one thing, most digital assets can be multiplied or transferred without appreciable limit or cost.17 In this respect, digital assets differ not only from tangible assets such as real estate, vehicles, or jewelry,18 but also from other kinds of intangible assets such as trademarks, assignable claims, or trusts.19 Also, digital assets such as photographs or books can be fairly easily transformed into physical objects.20 In addition to these unique characteristics, digital assets are still a relatively new phenomenon, at least as far as legislatures and courts are concerned.21 The universe of possible digital assets is dynamic, expanding and contracting in ways that are not easily predicted.22 Finally, digital assets are different from other types of assets in that they are the subject of even less estate planning.23
An estate planning client might take any imaginable attitude with regard to a particular digital asset.24 At one extreme, a person may want a certain item or category of items to be destroyed.25 At the other extreme, a person may wish for a digital item to be not only given to all of their survivors and friends, but also to have it made available to the general public, advertised and promoted.26 On the continuum between, a person may wish to bequest a particular item to a particular individual, a particular set of items to a particular set of individuals, or to distribute a variety of different assets specifically to a variety of different recipients.27
Whatever a client’s intentions for the disposal of their digital assets, accomplishing those intentions could be more difficult than the client expects.28 Although the ability to give assets to one’s heirs after death is normally considered an essential characteristic of an asset,29 not every digital asset actually has that characteristic.30 Moreover, for those digital assets that can be given to one’s heirs, it is not always clear how best to do so. This is partly because digital assets are subject to “a complex web” of law from a variety of sources,31 partly because that complex web of law is not yet well settled,32 and partly because digital assets themselves are also complex and dynamic.33 The next section examines applicable law in greater depth.
Law Affecting the Disposition of Digital Assets
As noted above, more than one area of law is likely to govern the disposition of a given digital estate. We next examine three of these areas in turn. First, traditional state probate law applies normally to many kinds of digital assets. Next, the terms-of-service agreements that control web-hosted or software-based assets are normally governed by contract law. Finally, there are some state and federal statutes that affect the disposition of digital assets, whether intentionally or inadvertently.
In the probate process a “personal representative”—whether an “executor” named in the will or an “administrator” appointed by the court—takes charge of the deceased’s property and disposes of it.34 Typically, the personal representative collects all the assets of the estate, pays any debts the estate may owe, and then distributes the remaining property as directed by the will or by the state’s intestacy statute.35 A state probate court oversees the personal representative’s activities, requiring an accounting after the deceased’s property has been distributed to new owners.36
From a legal perspective, the nature of the property involved is irrelevant. It could be a chain of restaurants;37 it could be a jar full of rare coins.38 More commonly, it could include laptop computers, iPhones, thumb drives, money in a PayPal account, or money in an online gaming account.39 The personal representative faces different challenges in distributing physical objects such as computers or hard drives and in distributing money from intangible accounts.40 Probate courts consider it a single effort.41
Fortunately, the probate process affords clients a high degree of certainty in planning the disposal of digital assets subject to it.42 They can simply direct in their will that a hard drive among their personal property be delivered to a new owner of their choice.43 If their representative knows about assets in online brokerage accounts, then they collect that money and distribute it the same as if it were cash.44
Unfortunately, the probate process by itself cannot account for all digital assets, because not all digital assets go into the deceased’s estate upon their death. Instead, as discussed next, many digital assets are subject to terms-of-service agreements, which prevent them from being passed on to a user’s heirs.
Terms-of-service agreements—including end-user license agreements, clickwrap, and browsewrap45—govern email accounts, social media and networking accounts, loyalty points clubs, and many other types of digital assets.46 Most people do not read these agreements,47 but they have stirred substantial controversy among those who have.48 Courts generally enforce them anyway.49 As noted, many of the agreements do not permit an account-holder or user to pass an account or its contents on to his or her heirs.50 Such prohibitions align naturally with many of the agreements’ prohibitions on living persons transferring such accounts or contents among each other.51
Terms-of-service agreements pose yet another problem for estate planners: companies change their terms-of-service agreements with minimal or no prior notice to the consumer.52 To add to the uncertainty, companies do not try to enforce their terms-of-service agreements in every case,53 nor do they unvaryingly succeed in cases where they do attempt to enforce them.54 “Hope is not a plan,” but the individual user or account-holder does sometimes prevail in disputes involving terms-of-service agreements.55
While terms-of-service agreements share general characteristics like changeability, enforceability, and lack of readership, they often vary significantly in their specific terms. For example, Automattic (blogging website) reserves the right to display advertisements on the blogs of non-paying WordPress users,56 but Google does not display advertisements on Blogger unless its users have opted in to use its AdSense service.57 The blogging major from the introductory vignette would presumably find such a difference interesting. Similarly, the aspiring novelist specialist might be interested to know that, unlike an account with Yahoo!58 or Hotmail,59 a Gmail account may be transferred to a different user.60 The amateur photographer private first class might prefer Flickr over GooglePhotos,61 since the license from him permitting Flickr to use his photographs continues only while he continues to use the website,62 whereas Google claims a license that continues even if he stops using their services.63
Whatever the terms, individual users do not negotiate them.64 Each of the morning’s clients should receive essentially the same advice about terms-of-service agreements: “Note the specific provisions that matter to you. Then use services whose terms best match your preferences.”65
Other Laws Affecting the Disposition of Digital Assets
So far we have discussed probate law and terms-of-service agreements, areas of law that directly govern the disposition of digital assets upon the owner’s passing. We now arrive at the residual category—“other laws” affecting the disposition of digital assets. First, we review copyright and computer crimes statutes, which affect digital assets despite pre-dating them. Then we consider more recent laws aimed at solving some of the problems arising from the increasing prevalence of digital assets.
United States copyright protections normally attach to whatever a person writes,66 including emails, blog posts, and comments on the blog posts of others.67 Registration of a copyright is not required, although it does provide additional benefits.68 Copyrights also attach to photographs, including those left or forgotten on a phone.69 Digital writings and digital photographs are equally protected by copyright as those originally existing as physical ink printed on physical paper.70
Most interesting for legal assistance clients, copyright in their creative original works is separate and distinct from rights they have in the works themselves.71 For example, if the blogging major were to transfer the copyright in his collected blog posts to a publisher, he could still also leave the original document files to his wife.72 Conversely, the aspiring novelist specialist would be able to transfer the copyright in her emails to her parents or siblings, even though her friend from school continued to hold the actual emails themselves.73
Computer Crimes and Data Privacy
In addition to copyright, computer crime and data privacy laws may also influence digital estate planning. Federal law makes it a crime to “access electronic communications without authorization”74 or to “intentionally access a computer without authorization . . . .”75 Based on such laws, the decedent’s personal representative collecting email or other digital assets off a computer conceivably risks committing a crime. Prosecutions of estate administrators or executors appear rare or non-existent,76 and at least one official stated that they did not intend to prosecute such cases.77 Nevertheless, the possibility raised considerable concern among estate planners and commentators.78 The problem of settling a digital estate in the shadow of criminal regimes protecting data privacy and computer access eventually led to the dedicated model statute discussed next.
The Uniform Fiduciary Access to Digital Assets Act (Revised)
The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) was a long time coming,79 but once it was finally adopted, states enacted it quickly.80 The goal of RUFADAA is “to facilitate fiduciary access . . . while respecting the privacy and intent of the user.”81 It creates a regime where, unless the decedent expressed consent or instructions otherwise, the estate’s representative is not permitted to access a decedent’s email,82 but is permitted access to digital assets other than email.83 The law also provides that terms-of-service agreements may be preempted by directions stated in a will.84
Recommended Planning Process
In view of the applicable law discussed above, this article recommends a four-step process as a generally useful framework for helping clients plan the disposition of their digital estates: (1) identify the assets; (2) decide what to do with them; (3) identify who should execute the plan; and (4) enable that person to execute it. Key to the process, and how it differs from the typical estate planning process for tangible property, is that the process should be repeated relatively frequently. A will treating solely tangible assets does not need updating unless the people named in it change; such wills can remain valid and useful for decades even as property covered by them changes substantially.85 An estate plan for digital assets, in contrast, needs to be reviewed more frequently—a shifting portfolio of digital assets means a shifting set of access and terms-of-service requirements.
Step One: Inventory Assets
The first step in planning for the disposition of one’s digital assets upon death or incapacitation is to identify and inventory the assets.86 A menu for crafting a checklist is provided in the appendix to aid completion of this step. While not a difficult task, clients must take care to devote sufficient time and attention to it.87 They should keep a draft checklist at hand for a week or longer, because attempting to identify and remember every digital asset of interest in a single effort is likely to result in some of them being overlooked. The client should review an entire year of activity statements for any active checking or debit account, looking for any annually-paid subscription fees that they might otherwise forget. As the use of the term “inventory” implies, the task is recurrent, not a one-time event. However, clients whose use of email, social media, and other digital services is generally stable need not undertake more than brief annual reviews of their original comprehensive inventory.
Step Two: Decide What to Do with Them
After developing a clear, accurate, and precise picture of what the digital estate holds, the client should next decide what to do with those assets. As mentioned previously, there are five basic actions a person might wish to have taken with regard to a particular digital asset: transfer, distribution, preservation, destruction, and neglect.
Transferring ownership or property is the main purpose of wills and probate law,88 and transfer naturally remains one of the things people want to do with their digital assets.89 As discussed, decedents can transfer many kinds of digital assets the same way they do most tangible assets.90
Distribution is transfer with multiple recipients. The digital nature of some assets permits distribution in a way that tangible assets do not. For example, the private first class in the introductory vignette may wish to prepare identical albums of photographs to be distributed among his aunts, uncles, and grandparents. He need not print and bind hard copies and haul them around in a footlocker, even as he continues taking additional pictures that he might also want to include in the albums. Rather, he can store the album digitally in one or more places and continue revising it conveniently. In the event of his untimely death, an up-to-date version of the album could be printed from a storage device, or could be distributed digitally simply by providing the intended beneficiaries with access to an online storage location.
Preservation is a kind of distribution with unspecified recipients. For example, the blogging major does not mean to select readers for his blog, but he does mean to have his blog available to any readers who may find it interesting. Destruction is, of course, the opposite of preservation, and, as noted above, destruction is certainly a disposition that some owners would want for their digital assets.91
Inaction is always one possible course of action. Neglecting digital assets is generally inadvisable, since untended digital assets are more susceptible to theft and misuse.92 That noted, it may still be reasonable in some circumstances to simply leave certain digital assets out of one’s planning. For example, many clients are probably collecting frequent shopper points on their smartphone; if their habit is to simply spend the balance down as soon as its value reaches five dollars, it would be reasonable to leave those club points out of their digital estate planning, even if they were legally transferrable to other individuals.
Step Three: Identify Who Should Execute the Plan
After having decided what should happen to the various digital assets, clients should next identify who should execute the plan. They should first consider what parts of the plan they need to execute themselves. For example, it is the clients themselves who would initiate services like Google’s Inactive Account Manager93 or Facebook’s Memorialized Account.94 Clients could also save a special set of emails or photographs to disc.95
The choice of a personal representative presents clients a number of options. One possibility is to select a single executor who would be willing and able to handle digital assets along with the rest of the property. It is also possible to appoint a special “digital executor” to handle the digital estate separately.96 A third option is to authorize the executor to retain and pay a “special advisor” to assist the executor in managing an estate’s digital assets, should such assistance be needed.97
Finally, rather than asking a family member or friend to manage and execute the digital estate plan, a client could also hire a business to perform many of the necessary tasks.98 There is a risk, of course, that such companies can fail.99 However, for some clients, such companies may provide a welcome solution.100 For example, the specialist, writing a novel, might prefer to use such a service to distribute access to her email accounts, rather than ask a family member personal representative to deliver access to her friend from graduate school. For many clients, it may simply be more comfortable to hire professionals rather than select a digital executor from among friends or family.
Step Four: Enable the Representative(s)
The final step of digital estate planning is to set conditions that enable the planner’s representative to execute the plan. There are two kinds of authorities or powers at issue—legal and practical. Certainly, representatives need clear legal authority to access, collect, and distribute the assets at issue. Without such authority the representative’s actions may be disregarded or otherwise challenged by various stakeholders. Even where the representative’s actions when taken are apparently acknowledged and accepted, if the legal authority underlying their actions is uncertain, then the finality of those actions is uncertain as well. However, legal authority alone is insufficient to enable a person to access and distribute an asset unless they also have the practical means to do so.
Legal assistance attorneys should encourage clients who decide to hire a digital estate planning service to review plans offered by several different services before selecting one, and to bring the attorney any questions the client may have about the terms-of-service.
Clients who prefer to have family or friends serve as their executors should name them in the will. Clients should provide their representatives with authorizations that state clearly and precisely exactly what the user or account holder intends for the representative to do.101 The will should also include language expressly stating the testator’s intent that it cover digital assets.102 Next, for digital assets subject to terms-of-service agreements, the client should ensure their representative understands the relevant terms and how to meet them. If the client intends for a representative to deal with multiple different service providers, the providers’ requirements should be collected and organized for convenient and effective execution.
The practical means to access an asset typically includes information such as an account number, username, associated email addresses and telephone numbers, password, and challenge questions and answers. For security while the owner is alive, the passwords could be stored separately from the rest of the information. The information should not be placed in the will itself.103 The personal representative should be kept informed of where the information is and how to retrieve it; they can then re-combine it in order to begin assembling and distributing the assets.
Despite the overall complexity of the legal regime touching digital assets, the specific tasks required of legal assistance clients and their executors are both understandable and manageable, and clients should be encouraged to develop a digital estate plan without delay.
Military attorneys should advise legal assistance clients to manage and plan for the disposition of their digital assets. Although the legal, technological, and market landscapes remain subject to unexpected movement, they are settled enough to allow for generally useful planning advice. Regardless of any surprises that may be coming, the primary takeaway to leave with every client—“Don’t neglect this area of your affairs”—will remain sound. TAL
1. Sandi S. Varnado, Your Digital Footprint Left Behind at Death: An Illustration of Technology Leaving the Law Behind, 74 La. L. Rev. 719, 723 (2014).
2. Alexander Cordova, How Much Money Can You Expect to Earn from Your Blog, Leaving Work Behind (Oct. 3, 2017), https://leavingworkbehind.com/earn-money-blogging/ (successful blog may earn several hundred dollars a month). See also Elise Dopson, The Key to Creating a Successful Blog: Evergreen Content, The Write Life (May 17, 2017), https://thewritelife.com/evergreen-content/ (“When it comes to monetizing your blog, creating evergreen content is a simple way to ensure your articles continue to generate income even if they were published years ago.”).
3. Social media applications such as Instagram are easily identified by unique logos and graphics schemes. “Whether it be big players like Twitter, Facebook, Instagram, or Snapchat, or more obscure apps like Ello, Slinger, Beme, or Keek, every social media platform has their own colors, fonts, style, feel, and flair—let’s call it the mise-en-scène of the online social world.” Cella Lao Rousseau, The Evolution of the Social Media Icon, iMore (May 20, 2016), https://www.imore.com/evolution-social-media-icon.
4. Digital, Merriam-Webster, https://www.merriam-webster.com/dictionary/digital (last visited July 25, 2019).
5. See also, e.g., Trevor Owens, All Digital Objects Are Born Digital Objects, The Signal (May 15, 2012), https://blogs.loc.gov/thesignal/2012/05/all-digital-objects-are-born-digital-objects/ (discussing a useful distinction between objects that are “born digital” and others that have been “digitized”).
6. Assets are “items that [are] owned or [have] value.” Also, “[a]ll the property of a person (esp. a bankrupt or deceased person) available for paying debts or for distribution.” Asset, Black’s Law Dictionary (10th ed. 2014).
7. Forty-three states now define “digital asset” as “an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record.” Revised Uniform Fiduciary Access to Digital Assets Act § 2(10) (2015). See Fiduciary Access to Digital Assets Act, Revised (2015), Uniform Law Commission, https://www.uniformlaws.org/committees/community-home?CommunityKey=f7237fc4-74c2-4728-81c6-b39a91ecdf22 (last visited July 25, 2019).
8. See generally John Romano, A Working Definition of Digital Assets, The Digital Beyond (Sept. 1, 2011), http://www.thedigitalbeyond.com/2011/09/a-working-definition-of-digital-assets/. See also Natalie M. Banta, Death and Privacy in the Digital Age, 94 N.C. L. Rev. 927, 929 (narrowing the definition of digital assets to fit her discussion); Susan Porter,The Digital Dilemma, Tr. & Est. L. Sec. Newsl., Summer 2013 (providing draft power-of-attorney language distinguishing “digital assets” from “digital accounts”).
9. Digital Asset, Wikipedia, https://en.wikipedia.org/wiki/Digital_asset, (last visited July 25, 2019). Consider also this definition from Professor Varnado: “ . . . any and all files and accounts, whether stored locally or online.” Varnado, supra note 1, at 720.
10. “Virtual assets” is sometimes used in the same sense as “digital assets,” but is also used to refer specifically to those assets that accrue in the “virtual worlds” of on-line gaming. See, e.g., Michael Walker & Victoria D. Blachly, Virtual Assets, Tax Mgmt. Est., Gifts, & Tr. J. 1 (2011); Christopher K. Odinet, Bitproperty and Commercial Credit, 94 Wash. U. L. Rev. 649 (2017) (using “virtual assets” and “digital assets” interchangeably). But cf., Scott Wisniewski, Taxation of Virtual Assets, 2008 Duke L. & Tech. Rev. 5 (2008); Christopher J. Cifrino, Virtual Property, Virtual Rights: Why Contract Law, Not Property Law, Must Be the Governing Paradigm in the Law of Virtual Worlds, 55 B.C. L. Rev. 235 (2014) (using “virtual assets” to mean only assets existing in virtual worlds).
11. See, e.g., John Connor, 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, 305 (2011) (using “digital estate” and “digital assets” interchangeably).
12. See generally Storm Tropea, Note and Comment, Social Media is Permanent, You Are Not: Evaluating the Digital Property Dilemma in Florida Probate, 39 Nova L. Rev. 91, 97-101 (2014) (categorizing and listing many different types of digital assets).
13. The alert legal assistance attorney may have spotted an issue here, the question of when or whether someone who sells things via such a website is actually engaged in a “private business activity,” and so ineligible to receive the attorney’s advice. U.S. Dep’t of Army, Reg. 27-3, The Army Legal Assistance Program, para. 3–8a(2) (21 Feb. 1996). “Private business activities” are defined to exclude “the . . . sale of . . . personal belongings of the type or in the quantity usually found within a principal residence.” Id. at Glossary, Section II Terms. This is consistent with the Internal Revenue Service’s guidance for distinguishing between a business and a hobby. IRS, Frequently Asked Questions, Income and Expenses (last updated Mar. 8, 2019), https://www.irs.gov/faqs/small-business-self-employed-other-business/income-expenses/income-expenses. A line between “personal” blogging and “business” blogging would presumably be drawn similarly, based on the size of income, amount of time spent on it, the frequency or length of posts, etc.
14. But see, e.g., Monica Anderson et al., 10% of Americans Don’t Use the Internet. Who are They?, Pew Research Center (Apr. 22, 2019), https://www.pewresearch.org/fact-tank/2019/04/22/some-americans-dont-use-the-internet-who-are-they/.
15. Evan Carroll, How Much Are Your Digital Assets Worth? About $35,000, The Digital Beyond (July 24, 2014), http://www.thedigitalbeyond.com/2014/07/how-much-are-your-digital-assets-worth-about-35000/; McAfee, McAfee Reveals Average Internet User Has More Than $37,000 in Underprotected ‘Digital Assets,’ BusinessWire (Sept. 27, 2011, 8:00 AM), https://www.businesswire.com/news/home/20110927005661/en/McAfee-Reveals-Average-Internet-User-37000-Underprotected; Department of Defense Annual Report to the Congressional Defense Committees on the Department of Defense Policy and Plans for Military Family Readiness, Fiscal Year 2016, para. 2-3, Financial Well-Being, http://download.militaryonesource.mil/12038/MOS/Reports/FY2016-Report-on-DoD-Policy-and-Plans-for-MFR.pdf.
16. In addition to any personal value—financial, psychological, or otherwise—many digital assets are also likely to hold value as social data or historical artifacts. See, e.g., Jaweed Kaleem, Death on Facebook Now Common As ‘Dead Profiles’ Create Vast Virtual Cemetery, Huffington Post (July 7, 2012), https://www.huffingtonpost.com/2012/12/07/death-facebook-dead-profiles_n_2245397.html (“One of the oldest online memorials is the U.K.-based Virtual Memorial Garden, which began in 1995. A simple, alphabetized collection of tens of thousands of paragraph-long, user-submitted memories of the dead, it’s still growing.”). See also, Greg W. Beyer, Web Meets the Will: Estate Planning for Digital Assets, 42 Est. Plan. 28, 31 (2015); Varnado, supra note 1, at 744.
17. There is no practical limit to the number of people who might use or enjoy any particular text, sound, or image file currently found on the Internet. At modest cost, an individual with scores of relatives could bequest each one a thumb-drive holding identical data (a multi-volume memoir, for example, or an hours-long documentary film).
18. Real estate, vehicles, jewelry, and the like may be transferred to multiple owners, but the limits of the resulting joint ownership are likely to be real and felt. A necklace can be worn by only one person at a time, a car can only travel one route at a time, and so on. See generally, John E. Cribbet et al., Property 311-384 (2002).
19. See, e.g., Jeff John Roberts, Is ‘Google’ Generic? Supreme Court May Decide, Fortune (Aug. 21, 2017), http://fortune.com/2017/08/21/google-trademark-supreme-court/ (“Words like cellophane, aspirin, and thermos used to be protected brand names in the U.S. until courts found them to be ‘generic’ and stripped away their trademarks.”).
20. See, e.g., Sally Wiener Grotta, The Best Photo Book Printing Services 2019, Tom’s Guide (July 26, 2019), https://www.tomsguide.com/us/best-photo-books,review-2651.html (reviewing and ranking eight different photo-book printing services).
21. Connecticut was first to address access to a decedent’s email, in 2005, followed by Rhode Island in 2007. Chelsea Ray, ‘Til Death Do Us Part: A Proposal for Handling Digital Assets After Death, 47 Real Prop. Tr. & Est. L.J. 583, 602-03 (2013). See also Ajemian v. Yahoo!, Inc., 478 Mass. 169 (2017) (a case of first impression involving a dispute over email).
22. Connor, supra note 11, at 314 (“[T]he internet is not slowing down in order to give estate planners time to catch up to all of its flashy new services . . . . ”).
23. Jamie Patrick Hopkins & Ilya Alexander Lipin, Viable Solutions to the Digital Estate Planning Dilemma, 99 Iowa L. Rev. Bull. 61 (2014) (“[T]he majority of Americans are vastly unprepared for their digital afterlife, unintentionally foregoing digital estate planning altogether and leaving their assets trapped in a digital purgatory.”); see also, e.g., Denis Clifford, Estate Planning Basics (2005) (nowhere mentioning digital assets).
24. While indifference is of course one possible attitude a person could take toward what happens after they die, inaction is inadvisable. Jamie P. Hopkins, Afterlife in the Clouds: Managing a Digital Estate, 5 Hastings Sci. & Tech. L.J. 209, 239 (2013) (“[T]hese services create a large repository of wealth and property, making them a prime target for digital criminals and thieves.”); PBS NewsHour, Dead and Online: What Happens to Your Digital Estate When You Die?, PBS NewsHour (July 12, 2014, 11:00 AM), https://www.pbs.org/newshour/show/happens-digital-presence-death; Press Release, ID ANALYTICS, Identities of Nearly 2.5 Million Deceased Americans Misused Each Year, ID Analytics (Apr. 23, 2012), https://www.idanalytics.com/press-release/identities-nearly-2-5-million-deceased-americans-misused-year/.
25. Clare Cock-Starkey, 10 Writers and Artists Who Wanted Their Work Destroyed, Mental Floss (July 12, 2016), http://mentalfloss.com/article/82874/10-writers-and-artists-who-wanted-their-work-destroyed; See also generally, Lior Jacob Strahilevitz, The Right to Destroy, 114 Yale L.J. 711 (2005).
26. Consider President Grant’s well-known financial motivation for writing his memoirs:
[T]he rascality of a business partner developed itself by the announcement of a failure. This was followed soon after by universal depression of all securities, which seemed to threaten the extinction of a good part of the income still retained, . . . . At this juncture the editor of the Century Magazine asked me to write a few articles for him. I consented for the money it gave me; for at that moment I was living upon borrowed money. The work I found congenial, and I determined to continue it.
Ulysses S. Grant, Personal Memoirs of U. S. Grant, Preface (1885). Anyone writing today is likely to be creating and storing digital drafts. See, e.g., Ali Hale, Pen or Keyboard—How Do You Write?, Daily Writing Tips, https://www.dailywritingtips.com/pen-or-keyboard-%E2%80%93-how-do-you-write/ (last visited July 25, 2019) (“My grandmother (and my mother) both write everything with pen and paper, then type it up onto a computer.”).
27. See generally Lawrence M. Friedman, Dead Hands (2009); Elias Clark et al., Gratuitous Transfers (2007).
28. See, e.g., Anthony C. Eichler, “Owning” What You “Buy”: How iTunes Uses Federal Copyright Law to Limit Inheritability of Content, and the Need to Expand the First Sale Doctrine to Include Digital Assets, 16 Hous. Bus. & Tax L. J. 208, 220 (2016) (“The reality is that federal law is at odds with people’s expectations of what they can do with their digital property at death.”).
29. “In one form or another, the right to pass on property—to one’s family in particular—has been part of the Anglo-American legal system since feudal times.” Hodel v. Irving, 481 U.S. 704, 716 (1987) (citing United States v. Perkins, 163 U. S. 625, 627-28 (1896)).
30. David Horton, Contractual Indescendibility, 66 Hastings L.J. 1047 (2015).
31. William Bissett & David Kauffman, Surf the Evolving Web of Laws Affecting Digital Assets, 41 Est. Plan. 32 (2014). Similarly, Professor Horton remarks that the descendibility of digital assets “depends on a maze of legislation.” David Horton, Indescendibility, 102 Cal. L. Rev. 543, 569 (2014).
32. “[E]ven those who believe that they have taken every precaution to affect a smooth transition from life to the digital afterlife, may find themselves on the wrong side of case-law as it emerges.” Siobhán Kinealy, Night of the Living Data: Estates Law and the Phenomenon of Digital Life After Death, 11 Rutgers Bus. L. Rev. 35, 37 (2014).
33. See Connor, supra note 11.
34. Jesse Dukeminier & Robert H. Sitkoff, Wills, Trusts, and Estates 41-48 (2013).
37. Property in two states requires ancillary process. Id. at 45. See also Stewart E. Sterk et al., Estates and Trusts 1008 (2011).
38. See, e.g., Anna Cieslik, Diligent German Banker Spends Half a Year Counting Pennies From an Unexpected Inheritance, Daily Break (Dec. 16, 2017, 11:20 AM), https://www.dailybreak.com/break/9400-dollars-in-pennies-counted-by-bank-teller.
39. See, e.g., Dean Irvine, Virtual Worlds, Real Money, CNN.com International (Mar. 12, 2007, 1801 GMT), http://edition.cnn.com/2007/TECH/science/03/12/fs.virtualmoney/index.html.
40. See generally, William Bissett and David Kauffman, Surf the Evolving Web of Laws Affecting Digital Assets, 41 Est. Plan. 32 (2014); David Horton, Tomorrow’s Inheritance: The Frontiers of Estate Planning Formalism, 58 B.C. L. Rev. 539 (2017).
41. Stewart E. Sterk et al., Estates and Trusts 1010 (2011).
42. See generally, Ray D. Madoff, Immortality and the Law: The Rising Power of the American Dead 57-85 (2010). See also, Horton, supra note 40, at 546 (discussing rise of harmless error rule that enable judges to enforce decedents’ wishes more often).
43. Dukeminier & Sitkoff, supra note 34.
44. Id. But see, Ashley S. Watkins, Comment, Digital Properties and Death: What Will Your Heirs Have Access to After You Die?, 62 Buff. L. Rev. 193, 200-02 (2014) (discussing challenges that paperless financial accounts can pose for heirs).
45. The terms are derived from “shrinkwrap,” referring to adhesion contracts for software where opening the package is supposed to imply acceptance of the terms. Browse wrap, Wiktionary, https://en.wikipedia.org/wiki/Browse_wrap.
46. See generally, Natalie M. Banta, Property Interests in Digital Assets: The Rise of Digital Feudalism, 38 Cardozo L. Rev. 1099 (2017).
47. Shankar Vedantam, To Read All Those Web Privacy Policies, Just Take a Month Off Work, NPR (Apr. 19, 2012, 3:30 AM), http://www.npr.org/blogs/alltechconsidered/2012/04/19/150905465/to-read-all-thoseweb-privacy-policiesjust- take-a-month-off-work; see also Mike Masnick, Supreme Court Chief Justice Admits He Doesn’t Read Online EULAs or Other “Fine Print,” techdirt (Oct. 22, 2010, 9:48 AM), http://www.techdirt.com/articles/20101021/02145811519/supremecourt-chief-justice-admits-he-doesn-tread-online-eulas-or-other-fine-print.shtml; Audie Cornish, Why Do We Blindly Sign Terms of Service Agreements, All Things Considered (Sept. 1, 2014, 4:07 PM), https://www.npr.org /2014/09/01/345044359/why-do-we-blindly-sign-terms-of-service-agreements (Interview with Omri Ben Shahar; Professor Ben-Shahar doubts whether the drafters themselves even read them.).
48. See generally Margaret Jane Radin, Boilerplate (2013). See also, e.g., Cheryl B. Preston & Eli W McCann, Unwrapping Clickwraps, Shrinkwraps, and Browsewraps: How the Law Went Wrong from Horse Traders to the Law of the Horse, 26 BYU J. Pub. L. 1 (2012); Paul J. Morrow, Cyberlaw: The Unconscionability/Unenforceability of Contracts (Shrink-wrap, Clickwrap, and Browsewrap) on the Internet: A Multijurisdictional Analysis Showing the Need for Oversight, 11 U. Pitt. J. Tech. L. & Pol’y 7 (2011).
49. See, e.g., Nicosia v. Amazon.com, Inc., 834 F.3d 220 (2d Cir. 2016); Serrano v. Cablevision Systems Corp., 2012 WL 1040019 (E.D. N.Y. 2012) (applying New York law); Smallwood v. NCsoft Corp., 2010 WL 3064474 (D. Haw. 2010) (applying Texas law).
50. The “ranks of companies that are mandating indescendibility by fine print” are “burgeoning.” Horton, supra note 31, at 565.
51. See generally Adrienne Clair Barbour, Comment, Used iTunes: The Legality of Redigi’s Model for a Secondhand Digital Music Store, 15 Tul. J. Tech. & Intell. Prop. 165 (2012).
52. “Our Services evolve constantly. As such, the Services may change from time to time, at our discretion.” Terms of Service, Twitter, https://twitter.com/en/tos (last visited July 25, 2019); See also Horton, supra note 31, at 565 (“In March 2013, Delta Airlines quietly deleted a right held by thousands of its customers. Although the company boasts that its SkyMiles never expire, it added the following clause to its list of events that will deactivate a frequent-flier account: ‘A member is deceased.’” citing Program Rules & Conditions, Delta Airlines, https://www.delta.com/content/www/en_US/skymiles/program-resources/program-rules.html (last visited July 25, 2019).
53. “[In] the current legal climate[,] social-media services do not appear to be ready or willing to target more informal transfers of ownership.” Kristina Sherry, Comment, What Happens to Our Facebook Accounts When We Die?: Probate Versus Policy and the Fate of Social-Media Assets Post-Mortem, 40 Pepp. L. Rev. 185, 238 (2012).
54. Most widely reported is the case of Lance Corporal Justin Ellsworth, whose surviving parents forced Yahoo! to provide them with his emails, contrary to Yahoo!’s terms-of-service. Justin’s Family Fights Yahoo Over Access to his E-mail Account, http://www.justinellsworth.net/email/yahoofight.htm (last visited July 26, 2019).
55. See, e.g., Rosa Marchitelli, Apple Demands Widow Get Court Order to Access Dead Husband’s Password, CBC News (Jan. 18, 2016, 5:00 AM), http://www.cbc.ca/news/business/apple-wants-court-order-to-give-access-to-appleid-1.3405652 (“Apple did reach out to the Bush family and apologize for what it called a ‘misunderstanding,’ offering to help the family solve the problem — without a court order.”).
56. “We reserve the right to display advertisements on your website unless you have purchased a plan that includes the removal of ads.” Terms of Service, WordPress.com, https://en.wordpress.com/tos/ (last visited July 25, 2019).
57. Terms of Service, Google AdSense, https://www.google.com/adsense/new/localized-terms (last visited July 25, 2019).
58. Oath Terms of Service, Oath: A Verizon Company, https://policies.oath.com/us/en/oath/terms/otos/index.html (last visited July 25, 2019) (hereinafter Oath).
59. Microsoft Services Agreement, Microsoft (Nov. 12, 2018), https://www.microsoft.com/en-gb/servicesagreement/.
60. Option to Transfer Data Between G Suite Accounts, G Suite Administrator Help, https://support.google.com/a/answer/1041297?hl=en (last visited July 25, 2019).
61. About Flickr, Flickr, https://www.flickr.com/about (last visited July 25, 2019).
62. Oath, supra note 58.
63. Terms of Service, Google (Oct. 25, 2017), https://policies.google.com/terms?hl=en.
64. See, e.g., Jason Scott Johnston, The Return of Bargain: An Economic Theory of How Standard-Form Contracts Enable Cooperative Negotiation Between Businesses and Consumers, 104 Mich. L. Rev. 857, 860 (2006); see also Sherry, supra note 53, at 341 (“[M]any social-media services have exhibited an unchecked audacity when it comes to testing the boundaries of public tolerance.”).
65. Of course, their preferences could be based on other things apart from the terms-of-service agreements, such as the quality of a user interface or the number of other users. See, e.g., Kezz Bracey, The (Seriously) Comprehensive Guide to Choosing a Web Host, Envatotuts (Feb. 15, 2016), https://webdesign.tutsplus.com/tutorials/the-seriously-comprehensive-guide-to-choosing-a-web-host—cms-25430.
66. 17 U.S.C. § 302(a) (2010) (“Copyright in a work created on or after January 1, 1978, subsists from its creation . . . .”). U.S. copyrights are protected internationally by treaty. See generally, Robert P. Merges et al., Intellectual Property in the New Technological Age 741-51 (2012).
67. See, e.g., Dan Hunter & F. Gregory Lastowka, Amateur-to-Amateur, 46 Wm. & Mary L. Rev. 951 (2004).
68. See Merges et al., supra note 66, at 458-59; Craig Allan Nard et al., The Law of Intellectual Property 453-54 (2011).
69. See generally, Justin Hughes, The Photographer’s Copyright: Photograph as Art, Photograph as Database, 25 Harv. J.L. & Tech. 339 (2012); Terry S. Kogan, How Photographs Infringe, 19 Vand. J. Ent. & Tech. L. 353 (2017).
70. The “original works” need only be “fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102(a) (2010).
71. 17 U.S.C. § 202(a) (2011) (“Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied.”). See also Gary Myers, Principles of Intellectual Property Law 49 (2013).
72. Similarly, President Grant’s publisher had the right to publish (make copies of) his memoir, while his family kept the manuscript. See Library of Congress, Index to the Ulysses S. Grant Papers iv (1965), http://lcweb2.loc.gov/service/gdc/scd0001/2009/20090623002ul/20090623002ul.pdf.
73. 17 U.S.C. § 102(a) (2010).
74. 18 U.S.C. § 2701(a).
75. 18 U.S.C. § 1030 (2006). Most states also have enacted computer crime laws. See Fernando M. Pinguela & Bradford W. Muller, Virtual Crimes, Real Damages: A Primer on Cybercrimes in the United States and Efforts to Combat Cybercriminals, 16 Va. J.L. & Tech. 116, 150-88 (2011).
76. Natalie M. Banta, Inherit the Cloud: The Role of Private Contracts in Distributing or Deleting Digital Assets at Death, 83 Fordham L. Rev. 799, 842 (2014).
77. James D. Lamm et al., The Digital Death Conundrum: How Federal and State Laws Prevent Fiduciarions From Managing Digital Property, 68 U. Miami L. Rev. 385, 401 (2014).
78. Id. See also, e.g., Varnado, supra note 1, at 749; Beyer, supra note 16, at 32.
79. See Tropea, supra note 12, 107-11 (reviewing state legislation pre-RUFADAA); Ray supra note 21, 596-98 (discussing one of the first state legislative efforts, in Oklahoma).
80. See Fiduciary Access to Digital Assets Act, Revised (2015), supra note 7.
81. Revised Uniform Fiduciary Access to Digital Assets Act 2015), Prefatory Note.
82. Id. § 7.
83. Id. § 8.
84. Id. § 4(c).
85. Dukeminier & Sitkoff, supra note 34, at 373-74 (2013) (note providing average growth of TSP value during average military career).
86. See, e.g., Kevin Snyder and Jessica Ertel, Estate Planning in a Digital Age: Protecting Your Digital Assets Today and in the Future, Orange County Law., June 2016, at 28, 31; Jennifer A. Davis, Counseling Clients for #Digitaldeath, 71 J. Mo. B. 134, 137 (2015).
87. See generally Evan Carroll & John Romano, Your Digital Afterlife (2010).
88. Horton, supra note 31, at 569 (“Although this issue is fuzzy and under-theorized, we generally think of succession as mandatory: once something is descendible, it must be passed on.”).
89. But see Banta, supra note 8 (“One of the gaping holes in discussions about digital assets after death is the complete lack of reliable, empirical evidence about how the majority of Americans would like their digital assets to be treated postmortem.”).
90. See generally Naomi Cahn, Probate Law Meets the Digital Age, 67 Vand. L. Rev. 1697, 1703 (2014).
91. To give another example, Justice Black destroyed his conference notes because he did not believe such notes should be published posthumously. Dukeminier & Sitkoff, supra note 34, at 14.
92. See supra note 24.
93. About Inactive Account Manager, Google Account Help, https://support.google.com/accounts/answer/3036546 (last visited July 25, 2019).
94. Memorialized Accounts, Facebook Help Center, https://www.facebook.com/help/1506822589577997/ (last visited July 25, 2019).
95. See, e.g., Sara Clemence, Snap Out of It, Wall St. J., Dec. 2017, at D11 (urging readers to develop strong habits of digital photo management in order to better enjoy their photos).
96. Rachel Pinch, Note, Protecting Digital Assets After Death: Issues to Consider in Planning for Your Digital Estate, 60 Wayne L. Rev. 545, 564 (2014).
97. Porter, supra note 8.
98. Carroll & Romano, supra note 87, at 159. See also Michael D. Roy, Note, Beyond the Digital Asset Dilemma: Will Online Services Revolutionize Estate Planning?, 24 Quinnipiac, Prob. L.J. 376, 381 (2011).
99. See generally Rachel E. Ferrante, Comment, The Relationship Between Digital Assets and Their Transference at Death: “It’s Complicated,” 15 Loy. J. Pub. Int. L 37, 56-57 (2013). See also Gerry W. Beyer and Kerri M. Griffin, Estate Planning for Digital Assets, Estate Planning Studies, July 2011, at 6 (life of online afterlife management companies is “dependent upon the whims and attention spans of their creators and creditors.”). See also David M. Lenz, Is the Cloud Finally Lifting? Planning for Digital Assets, ALI CLE Est. Plan. Course Materials J., Feb. 2017, at 35 (“For awhile thereafter, greatgoodbye.com would take you to a site selling skin-care products. Now there is nothing on that website.”).
100. See generally, Roy, supra note 98 (discussing pros and cons of using such services).
101. See, e.g., Jean Gordon Carter et. al, Sample Will and Power of Attorney Language for Digital Assets, The Digital Beyond, http://www.thedigitalbeyond.com/sample-language (last visited July 25, 2019) (“At the very least a will should include specific powers to handle digital assets and a definition of digital assets.”).
102. Id. Alternative sample language can also be found in state form books and continuing legal education course materials.
103. The will would not be changed as often as passwords should be changed. Also the will is a public document that could eventually provide the information to people other than the executor.
104. Personal Facebook accounts are not transferable, but Facebook “Pages” can be transferred simply by changing the “Admin Roles” settings. The person receiving the Page must be a Facebook user and have “liked” the Page being transferred. A Facebook account will be “memorialized” if Facebook learns of the user’s death. A user can request in advance that his or her account be deleted instead, or can select a “Legacy Contact” who can “manage” a memorialized account. Immediate family members may request that a memorialized account be removed. An obituary or Memorial Card as proof of death; Power of attorney, birth certificate, last will and testament, or estate letter as proof of authority. Memorialized Accounts, Facebook, https://www.facebook.com/help/1506822589577997 (last visited July 25, 2019).
105. Data stored on Google may be transferred from one account to another “on a per product basis,” if the person executing the transfer has account access. Download Your Data, Google Account, https://takeout.google.com/settings/takeout (last visited July 25, 2019). Users may use Inactive Account Manager to: (1) Select how long the inactivity must be before the account is considered inactive (3, 6, 12, or 18 months); (2) Select (a) “Trusted Contact(s)” who will have access to the account’s contents for three months, prior to the account being deleted. Trusted contacts are verified by phone number, and need not be notified when selected. Google emails them with instructions upon the account being declared Inactive. About Inactive Account Manager, Google Account Help, https://support.google.com/accounts/answer/3036546?hl=en (last visited July 25, 2019).
106. Ownership of a LinkedIn Group is transferrable. Transferring Ownership of a Group (Group Management), LinkedIn, https://www.linkedin.com/help/linkedin/answer/257 (last visited July 25, 2019). Anyone may request the removal of a deceased user’s profile. Requestor needs to know user’s url and last job. Deceased LinkedIn Member – Removing Profile, LinkedIn, https://www.linkedin.com/help/linkedin/answer/2842 (last visited July 25, 2019).
107. Twitter currently permits transferring an account; the gaining user would need log-in information. Twitter Rules and Policies, Twitter Help Center, https://help.twitter.com/en/rules-and-policies#twitter-rules (last visited July 25, 2019). Twitter may remove accounts for “prolonged inactivity.” Twitter will deactivate accounts when requested by an authorized representative or family member and will also remove images of deceased individuals in certain cases when requested. How to Contact Twitter About a Deceased Family Member’s Account, Twitter Help Center, https://help.twitter.com/en/rules-and-policies/contact-twitter-about-a-deceased-family-members-account (last visited July 25, 2019).