Estate Planning with Digital Assets

Planning Your Digital Estate:

Is your legacy lost in cyberspace?

Daniel S. Hoops, J.D., LL.M.*

 

I.          Introduction

II.        Planning the Disposition of an Estate

A.        What are digital assets?

B.        Administering an Estate

III.       Existing Laws neither Preserve nor Encourage Preservation of Digital Assets

A.        Generally

B.        Property Rights

C.        Contractual Rights

D.        Uniform Probate Code (“UPC”)

E.         Federal Transfer Taxes

IV.       Estate Planning under Service Provider Terms of Service

A.        Rights Effected by Terms of Service

B.        Rights of Deceased Users

V.        Estate Planning for Digital Legacies under Current Law

A.        Prepare a Separate Writing Related to Digital Assets

B.        Appointment of a Digital Administrator

VI.       Proposed Standardization of Internet Terms of Service

A.        Overview

B.        Recommended Terms of Service

VII.      Proposed Changes to United States Law to Manage a Digital Legacy

A.        Federal Law

B.        State Law

VIII.    Conclusion

 

 

I.          INTRODUCTION

 

After death, who controls the digital legacy for users of service providers like Facebook and Twitter?

This simple question prompted the research contained in this article and will hopefully continue the conversation[1] about whether laws should be updated for email, social media and blog users to advance plan their digital estates.

Devoid of any options under current law, people are now left with just one estate planning option: Give someone their account passwords.

This limitation is not optimal considering that few people think to give someone their passwords, and identity theft could easily leave a deceased user’s accounts vulnerable. It further is not a viable option for those users who become incapacitated.

Unfortunately, present law does little to guide users of free Internet services in planning much of anything related to their digital assets. Unless legislators adopt new guidelines or service providers agree to a uniform method to control digital assets after death, digital legacies are essentially lost in cyberspac

This article examines present law and several of the popular free service providers’ terms of service in relation to planning a person’s digital legacy in the event of death or incapacity.  Omitted from this discussion are the estate planning issues that might affect children,[2] users of pay-for-access social networks,[3] Internet gaming,[4] privately hosted email and blogs, and business ownership interests that include digital assets.[5]

 

II.        PLANNING THE DISPOSITION OF AN ESTATE

 

Every day there are hundreds of millions of users online making eCommerce thrive.[6]  Cyberspace is the glue that connects the entire world’s population for business, pleasure, and even political revolutions. People use the Internet to upload and transmit billions of files with digital content through various email providers, social networks, and blogging hosts.

 

Transmissions of digital content create virtual maps of users’ daily lives that grow each time a user accesses an Internet service provider’s network.  By December 2011, Facebook had 854 million users[7] and an infrastructure to handle over 120 billion messages per month;[8] Flickr surpassed 6 billion images hosted (with 3,000 images uploaded ever minute);[9] Twitter users transmitted 200 million messages each day;[10] 48 hours of videos were posted on YouTube every minute;[11] Yahoo claimed to have 302 million email users;[12] and 4.2 billion professionally-oriented searches of LinkedIn profiles were conducted.[13]

 

Today’s Internet users have made transmitting content to other users a way of life. Online socializing is so popular that one study believes Internet users’ social relations have and will continue to improve through the year 2020.[14]  Unless a user takes active steps to erase content they uploaded, or the service provider removes the content from its server, user data (and the many years of effort creating it) can sit on a server for as long as the service provider allows.

 

A.        What are Digital Assets?

 

For purposes of this article, a digital asset is an account established by an individual through a free Internet service.  Service providers[15] offer individuals the use of free electronic mail, social networking and blogging platforms as an incentive to access their sites.[16]  Service providers that offer these services for free are interested in having large numbers of users, as the more populated the site the more attractive it is for online advertisers.[17]

 

The federal law currently recognizes some digital assets as quasi-property rights under the U.S. Criminal Code, but beyond sanctioning unauthorized releases of stored digital content, the law is silent as far as conferring property status for these assets.[18]  The federal law also recognizes the popularity and importance of Internet service providers in copyright piracy matters,[19] but individual users (or the content in their accounts) are otherwise virtually ignored.

 

The following are examples of digital assets that are used by billions of people to transmit, share, and store data through their everyday web activities. Significantly, there exist few laws that definitively recognize or protect them. The Congress and federal agencies appear more focused on consumer privacy issues with service providers than with consumer property rights when it comes to digital assets.[20]

 

i.          Email

 

Behind Internet search, electronic mail is the second most popular activity by on-line users.[21]

 

Email is the preferred method of direct communication in the United States as handwritten letters and notes transmitted by the U.S. Postal Service slowly fade from mainstream culture.[22]  The declining use in the postal service can also be attributed to society becoming more paperless as people file their income taxes, pay their bills, shop and bank online.  A user simply needs an email address in order to receive confirmation of any electronic transaction.

 

Users of email[23] quickly embraced its advantages over phone calls, faxes and next-day delivery services because the services were free and users could save, archive, and retrieve email with relative ease.  Today’s email users are very dependent on the efficiencies service providers offer, especially the ability to store transmitted correspondences and attached files.  Some of the most popular email service providers are Google’s Gmail,[24] Yahoo,[25] AOL[26] and Microsoft’s Hotmail.[27]

 

Because email may be used as a way to search for someone in cyberspace, some users create multiple email accounts to avoid being identified as a member of a particular website or in an effort to manage their online reputation.[28]  For a deceased person, the content of their email might shed some insight into who they were as a person, could disclose family secrets or horrors, or be nothing more than harmless writings the owner never deleted.  A person’s email may also be something as simple as communications a family might want to access as a reminder of their loved one.

 

The volume of email a person sends during a lifetime might, if printed, fill a warehouse.  Before the digital age, documents, correspondences and messages between people were generally saved in desks, dressers, cabinets or some other secure, but easy to find, location.  After the writer’s death, these documents could be retrieved and read by surviving family members.

 

Aside from being a cyber repository for communication, email may have a more practical consequence if a person were to die or become incapacitated.  A person’s email account might contain important information or data (such as online invoices and bills, identifying information such as social security number, or other time-sensitive correspondences) that require immediate attention.[29]  Every consumer transaction in eCommerce requires two things: the user’s payment information, and email address. In the event of death or incapacity, if the email account were not readily accessible, there could be some unknown liability against the user, the user’s estate or the fiduciary of the estate.[30]

 

Email is not easy to access like a box of personal correspondence or a decedent’s mail.  Without access to the email account, representatives of decedent’s estates will be required to send blanket subpoenas or commence litigation to simply receive the most basic information about their decedents.[31]

 

The contents contained in an email account are very important for post-mortem administrations, and without the user’s account name and password, these contents can be lost forever.[32]

 

ii.         Internet Social Networks

 

Online social networking sites are extremely popular with users of the Internet today.[33]  Social networks are designed as communities (e.g., a place to meet and share content with select friends) or based on common interests (e.g., matchmaking, music, picture or video sharing, business networking). Web users may also be inclined to have personal profiles registered with several online social networks.  Some of the most popular free social networks are Facebook, Myspace, Google+ and LinkedIn.

 

Internet social network providers allow a user to create a personal profile, manage the digital content uploaded to that profile, add other users to their network, and communicate with specific users or their entire network of friends. Data files, email and private discussions are regularly transmitted through a person’s social network profile.

 

Profiles and accounts of those who participate in social networking contain tremendous personal value.  All of the content uploaded and stored in a profile account is a reflection upon the creator and becomes part of their digital legacy.  These profiles can remain hosted in cyberspace if a user should die or become incapacitated.

 

iii.        Blogs

 

Web logs (or blogs) might be defined as a person’s online soapbox, where almost anything that interests the user can be discussed or uploaded.  Some of the digital records that can be posted include videos or photos, personal musings and criticisms, and public exchanges with other bloggers. Blogs are popular with readers who may subscribe as a follower to a blogger and receive notification when new content is posted by the blogger.[34] Some of the popular providers of free blogging are Twitter, Youtube, Flickr, blogger.com, and WordPress.

 

Most blogs are intended for public viewing and bloggers encourage commentary or re-publication of the content they post.  In addition, readers can incorporate one blogger’s content to a social network profile or blog maintained by a different service provider.

 

Due to the advertising restrictions placed on bloggers by the free service providers, many in the blogosphere have elected to take control of their blogs and pay for web hosting services themselves, such as through the services of GoDaddy.com.  By taking complete ownership of their blog, these bloggers are not confined to as many of the restrictions of the free service providers’ terms of service.[35]  For example, individuals who own or self-host their blogs can transfer their blogs at death (as with any other non-digital assets) however they decide.[36]

 

The many forms of communication and published commentary that become the blog contents will remain public after a person’s death or incapacity. Whether this content should be removed or remain on the Internet in perpetuity is a decision that only a blogger who is alive and competent can make.

 

B.        Administering a Digital Estate

 

Applying the present (but limited) body of law to estate planning and the administration of digital assets is a frustrating endeavor.  One challenge is that it is unclear what requires estate planning to begin with.  A more troubling challenge is how a person can effectuate the disposition of something that may not even be defined as an asset under present law?

 

i.          Generally

 

Whether a person is incompetent or deceased, managing the assets of an estate comprised of real and tangible personal property is relatively straightforward: these are readily identifiable properties and the law provides sufficient guidance in how these assets should be handled.  With digital assets, planning is not so straightforward.

 

Every state has a procedure that allows for the administration of a deceased person’s assets by an appointed representative of their estate.[37]  There are similar statutes that govern the management of assets for an incapacitated person.[38] The third-party representatives who handle these administrations are called fiduciaries.[39]  These appointed fiduciaries must adhere to strict duties of loyalty, trust and diligence to their charges (i.e., the decedent’s heirs or the incapacitated person) in how the assets are managed under their care.[40]

 

It bears consideration whether digital assets have any value that would require an administration by a fiduciary.  Alternatively, does a fiduciary have the right to access another person’s email, social network or blog account to handle an estate or conservatorship administration?  Perhaps the ultimate administration question is for users:  do they want their digital assets continued, accessed or disclosed to anyone?

 

The personal representative is the fiduciary appointed by a probate court and is given the ultimate authority to transfer assets from the decedent’s name to designated heirs.[41]  Decisions and instructions for managing a decedent’s estate are provided in the person’s last will and testament or the particular state’s probate statute.[42]

 

A conservator is the fiduciary appointed by a probate court to preserve the assets of an incapacitated person during their incapacity.[43]  A power of attorney is a fiduciary appointed by a person, not the probate court, to handle that person’s financial transactions during their incapacity.[44]  If a person has a designated power of attorney, a conservatorship proceeding is usually unnecessary as the power of attorney can handle most of the same tasks without judicial oversight.[45]

 

The principal objective of an estate administration is to dispose of an individual’s assets, file estate and income tax returns on behalf of the decedent, and satisfy any outstanding liabilities in an orderly manner; wills, trusts, beneficiary designations and assignments are some of the instruments used to accomplish these tasks.  For an incapacitated person, the objective is to preserve the person’s estate during the period of incapacity; powers of attorney, trusts and co-ownership of assets are methods used to manage the incapacitated person’s estate.

 

Estate planning involves making arrangements for most intangible assets, such as investment and retirement accounts, bank accounts, life insurance and annuity contracts. Owners of these assets can designate specific beneficiaries, add a co-owner to an account, reserve a life estate for themselves, or assign an interest in the asset to a third-party.

These designations are usually covered by the owner’s account or contract and are governed by an extensive body of state and federal law.  Subject to the web host’s terms of service, similar arrangements can be made by individuals who own their blogs and websites.

 

Digital assets are not the same as a 401k plan or life insurance policy, they are akin to family heirlooms or other sentimental objects that do not require extensive planning. However, the ultimate disposition could have substantial personal or moral value to the creator of the digital asset, or to the surviving family members.

 

Unfortunately, only Connecticut, Idaho, Indiana, Oklahoma and Rhode Island recognize email as something a personal representative has the authority to administer.[46] Of these five states, only Idaho grants conservators the authority to access an email account.[47]

 

If a person were to realize the extent of the digital content their accounts held, it might be a pause for concern. . . what if their digital content disappeared? What if their account were read by family members?

ii.         Life Leases

 

In a non-digital world, the type of relationship created with service providers is called a life license or life estate.[48]  All rights and usage to the property subject to the lease revert to the licensor or remainderman upon the lessee’s death.[49]  For example, imagine a rancher who held a life lease to property.  During the rancher’s life, the animals could be bred, raised, sold, or moved to other property as the rancher decided.  When the rancher died, his or her rights to use the property would cease, but ownership of the herd would be transferred to the rancher’s surviving family members not to the owner of the remainder interest.

 

In a digital world, the concept of a life license means that ownership of the content may belong to the user and under the user’s control during life.  The license allows the user to freely upload or transfer content through the site and remove that content during the user’s life.[50]  In order to manage and remove content from a site, however, users must also be alive and capable of doing so.[51]

 

Essentially, all of the rights a user might have under their license are eliminated at death because the ability to remove or access the users content is assigned to the service provider. If a user becomes incapacitated, these rights might be suspended or terminated depending upon how long the user is incapacitated.[52]  As a result, Google, Facebook, Myspace, LinkedIn and Twitter could become their users’ remaindermen if their terms of service so provided.[53]

 

It is unclear whether there is recourse, or a post-mortem right, for the user’s estate to take control of the digital content under these licenses.[54]  In general, a person’s post-mortem rights are limited under the common law;[55] where actions for physical injuries or wrongful death, completion of a contract and appropriation of an individual’s name after-death may be allowed,[56] actions for invasion of privacy and defamation end at a person’s death.[57]

 

III.       EXISTING LAWS NEITHER PRESERVE NOR ENCOURAGE PRESERVATION OF DIGITAL ASSETS

 

A.        Generally

 

In the United States, Internet activities can be governed by several sources of law, including statutes, treaties, administrative regulations and traditional common law. Applying these existing laws to cyberspace is complicated, especially with jurisdiction and choice of law issues that often arise.[58]

 

The legal issues in this paper, however, are relatively simple in relation to cyberlaw.[59]  Whether it is possible to plan a person’s digital estate is answered by looking to the laws that govern property and contracts: (i) is an online account, or the content in an Internet service provider’s account, recognized as transferable property, and, if so, (ii) to what extent any property rights can supercede the obligations of a contract signed by the property owner during life.  For estate planning purposes, the high-tech laws that govern eContracts and digital intangible properties need to be reviewed rather than the statute of frauds and other laws governing possessory interests and chattels.

 

B.        Property Rights

 

Digital content or property can be anything (e.g., letters, memos, thoughts, ideas, expressions, videos, songs, photos, communications, musings and gobbledygook) transmitted and stored in an online environment.  But is this content so substantial that it should be given protection under the law as a property right? This question leads back to the question of what needs to be protected.

 

            Is the digital asset the content created by the user or is it the account that stores the content?

 

i.          Intangible Property

 

Whether a digital asset is or could be transferable as an intangible property is unclear under federal law.  Some of the rights a person might have in their digital asset are protected against unauthorized disclosures of communications stored by an electronic communications service[60] under the Stored Communications Act (“SCA”);[61] the Copyright Act may govern other rights.[62]

 

While the SCA does recognize a right with regard to “stored electronic communications,” such as stored email, it goes no further than that.  The SCA creates a privacy right that can be waived by individual users.  In other words, it is not a property right that would cover all digital assets.

 

For example, content posted on a blog or social network would not be protected under the SCA because the content is shared with the public;[63] but email and private chats between users would be covered communications.  The SCA, therefore, falls short in defining most digital assets because the purpose of social networks and blogs is to publicly disseminate user content.

 

Property considerations for digital assets are better suited under the Copyright Act for purposes of this discussion. Copyrights and the Internet have become closely connected; especially as service provider networks are frequently used as the platform for displaying and sharing digital content.[64]

 

The Copyright Act protects works of authorship that are “original” and which can be “perceived, reproduced or otherwise communicated” to others.[65]  An unregistered, original work may still be considered an “original work,” but authors have no right to prosecute infringements of “common law copyrights.”[66]  In order to enforce a copyright in federal court, the author or owner must register their work with the U.S. Copyright Office.[67]

 

The challenge for owners of digital assets is applying the Copyright Act’s standards, (i.e., originality of their content, compilations, and publication) to their habits as users of service providers.  These standards will prevent most content posted on social networks and blogs from protection under the Copyright Act.

 

A single blog entry, such as a person’s video diary or daily musing could be protected property if the content were original. For most bloggers, registering their original works with the U.S. Copyright Office is either something they do not consider or is not cost effective as they regularly and freely post new content.[68]  Once their unregistered content is posted (or published), it becomes part of the public domain.[69]  This may be discouraging to bloggers, but they are not prohibited from registering their content (or their entire blog as a compilation) under the Copyright Act before publishing it.[70]

 

A social network user posting a “mood” or “hello” on a profile is not the type of work for which copyright protection is intended.[71] Many of these are simply observations or commentary, not creative works of authorship.[72]

 

Likewise, an email or email account is not a copyrightable work.[73]  A poem transmitted through email, however, could be considered an original work by the author.[74]

 

The transmission of data poses a problem for the administration of a digital asset. Consider a writer who sent a poem through personal email.  The content is still covered by the Copyright Act as an original, unregistered and unpublished work; but who controls the content if the writer is deceased?  The unknown recipient of the email who now possesses the content?  If a fiduciary were unable to access the account to know of its existence in the first place, the writer’s estate could suffer damages because it cannot even attempt to register the work under the Copyright Act.[75]

 

For digital assets, the method of transmitting or storing a work (i.e., the account) is not the protected property under copyright law, rather it the method used to engage in infringements.[76]  For example, the services offered by YouTube and Flickr are simply platforms for users to share video or photographic content to other users.  Users surely post unauthorized copyrighted material (both knowingly and unknowingly) considering the number of files uploaded every day. The Copyright Act imposes a duty upon service providers to remove any content that infringes upon the copyright of the owner upon receiving notice of the infringement.[77]

 

Publication of an unregistered work will result in a waiver of whatever rights the owner had in the work under the fair use doctrine; [78] this may be the case if the content is shared and re-transmitted by the user’s followers.[79]  But transmitting or uploading content to the Internet would probably be considered a publication of the content, rather than a performance by the author.[80]  The Copyright Act allows for broadcasts or displays as protected public performances, irrespective of the medium,[81] so this question could be open to further debate for blog posts.

 

Considering the enormous amount of content uploaded through service providers every day, the registration process and alleged infringements would shut down the entire copyright system.  Extending full copyright protection to individual email accounts, social network profiles and blogs is also contrary to the spirit of copyright protection.[82]

 

As a result, planning a digital legacy begins and ends not with the actual content, as a property right, but with the parties who control the storage and method of transmitting the content.[83]

 

C.        Contractual Rights

 

In order to create a digital asset, a user must establish a relationship with an Internet service provider.  This is accomplished by logging onto a provider’s website and agreeing to the provider’s terms of service; in other words, by clicking accept, a contract is formed between the user and the service provider.

 

i.          eContracts

 

Under the common law, an agreement is valid upon its creation and the express terms and conditions will govern the parties to that agreement. This is also true with online contracts.[84]  Absent fraud in the formation, courts are reluctant to deviate from agreed terms in contracts, even if those terms are considered one-sided or unfair.[85] The terms of service governing digital assets are enforceable contracts between the site and user, just as any other signed contract.[86]

 

State and federal laws govern the validity of electronic records and signatures for eCommerce transactions, including the contracts users sign to create digital assets.[87]  When it adopted the Electronic Signatures in Global and National Commerce Act (“E-Sign”), Congress was “[c]areful to preserve the underlying consumer protection laws governing consumers’ rights to receive certain information in writing,” so it included special requirements on businesses.[88] While Congress may have had consumers in mind in 2001, E-Sign may need to be revisited as consumers’ privacy rights seem to be a lesser concern to service providers.[89]

 

Although the federal E-Sign preempts state laws that govern contracts, it gives way to the Uniform Electronic Transactions Act (“UETA”) for electronic contracts signed in those states that have adopted the UETA.[90]  What this means is that state law will control the rights of the parties to an electronic contract agreed to by a resident of that state. There are many transactions covered by UETA, including purely state matters under the Uniform Probate Code.[91]

 

Some legal scholars have criticized website service providers who offer unfair and adhesive terms of service to web users,[92] such as the choice of forum or state law for disputes between the parties.[93]  Courts have and will continue to side with website service providers under a theory that users do not have to accept the terms of service (i.e., clicking I decline) or access the site.[94]

 

Applying the courts favorable view of eContracts, there is an estate planning roadblock when users accept the terms of service offered by free email, blogging and social network providers. What the terms of service may be in January 2012 could change by October 2012.

 

ii.         Terms of Service – Generally

 

The problem with planning a digital legacy is that the popular service providers offer terms of service that can be interpreted in multiple ways, or simply ignore a person’s digital legacy.

 

While most service providers do not claim ownership of their users’ original content, they do maintain tremendous, if perhaps inadvertent, control over users’ stored content.[95]  For users who simply want to have email or be part of a large digital or online community, understanding their rights under terms of service can be confusing,[96] but understanding the legal effect of accepting of those terms of service may not be fully appreciated.

 

An especially interesting term of service is one where the provider retains a unilateral right to change the eContract without the user having any right to negotiate the proposed change.[97]  When a service provider makes a unilateral change to the terms of service (or an amendment to the previously accepted contract), a single issue is raised: whether the service provider gave the user adequate notice of that change.[98]  If adequate notice of the changed term is given, users who continue to access the site will be doing so subject to the amendment to their original agreement with the service provider.[99]

 

An unusual characteristic of Facebook’s service is that it gives its users an opportunity to comment, object and vote on changes to its terms of service.[100]  This allows its users to understand and consider how those changes may affect their use of the site and the content they transmit through Facebook.

 

Microsoft’s service agreement (which covers its Hotmail and Messenger services) provides that any changes to its terms of service can be made without giving notice of the change to users.[101]  In addition, Microsoft user services should be unaware of another term of service that allows Microsoft to terminate its services without notice to users.[102]

 

The other major service providers simply reserve the important right to modify or change their terms of service at any time.[103]  Google’s January 24, 2012 announcement that its Universal terms of service would be changed, effective March 1, 2012, offered users an opportunity to ask questions or close their accounts, but did not give its users an opportunity to negotiate (or object to) the new terms of service.[104]

 

Another important term that users may accept when they create a digital asset is the waiver of their right to assign the account.  This is not an uncommon condition in most contracts, but when a user waives this right, it can have serious consequences to their estate plan.  How a service provider’s terms of service can have affect a user’s estate plan is discussed in IV., infra.

 

D.        Uniform Probate Code (“UPC”)

 

While eighteen states have officially adopted the UPC,[105] every state has law that governs decedent’s estates and incapacitated individuals in a similar manner to the UPC.[106]  The purpose of a probate law is to provide administrative mechanisms to manage the estates of deceased and incapacitated persons.

 

The range of powers granted by a probate court to a personal representative is broad.  They include the authority to settle claims, perform under contracts, file tax returns, and transfer assets from the estate to the beneficiaries and other third parties.[107] A conservator and power of attorney’s authority is to “preserve” an incapacitated person’s assets until the person regains capacity.  The UPC gives fiduciaries the lawful right to stand in the shoes of the (deceased or incapacitated) person to perform under existing contracts and to deal with that person’s property interests.[108]

 

When terms of service prohibit the assignment or access to a service provider’s account, the fiduciary is bound by the incapacitated or deceased person’s prior decision to enter into that contract.[109]  As a result, if the account is not accessible by a third-party under the terms of service, the fiduciary is, therefore, bound by that term.[110]

 

For example, in accordance with its terms of service in December 2011, Microsoft recently adopted a thorough procedure for users of its services.[111]  This procedure is designed to provide the following assistance:

How to request data from a deceased or incapacitated user’s account?

Microsoft Next of Kin Process: What to do in the event of the death or incapacitation of a loved one with a Hotmail account.

If you have lost a family member, or have a family member who has become medically incapacitated, the following information will help you contact Microsoft regarding their Windows Live Hotmail or MSN Hotmail account. [112]

Whether this procedure can be relied upon as a continuing right under the terms of Microsoft’s service depends on the remaining terms of service between Microsoft and the user.  Nevertheless, this procedure was designed to preserve the digital legacies of Microsoft users.

 

Although the 2008 amendments to the UPC included an updated definition for the terms record and signature to incorporate electronic signatures and electronic records,[113] the drafters did not consider digital assets in this latest version of the UPC.  This leaves the digital assets of a decedent in limbo and the personal representative has no authority to handle the assets in the manner that a deceased person may have intended.

 

As of March 2012, Connecticut and Rhode Island recognize a personal representative’s authority to access electronic mail.[114] The States of Indiana and Oklahoma confer authority upon a personal representative to access all of the digital assets of a decedent.[115]  The State of Idaho is the only state that confers authority upon both conservators and personal representatives to access a user’s digital assets.[116]

 

If digital assets were recognized as property owned by incapacitated persons and decedents’ estates under state and federal law, fiduciaries would have the authority to deal with them, as with all other assets under current law. Because a decedent’s digital rights cannot be uniformly transferred to heirs under present probate law, a uniform procedure allowing a user’s rights to be protected during incapacity and after death is necessary.[117]

 

E.         Federal Transfer Taxes

 

An estate planning discussion related to users’ rights in their digital assets would be incomplete without analyzing the estate, gift and generation-skipping transfer tax consequences to the user.

 

The business model used by many service providers makes tax planning for the type of digital assets discussed in this paper relatively easy.  Essentially, service providers’ terms of service allow users to exclude digital assets from the federal transfer taxes.[118]

 

The term of service that prohibits or restricts transfers or assignments of accounts can be reasonably interpreted to forbid lifetime and testamentary transfers of user accounts.[119] As a result, if a digital asset cannot be assigned or transferred by the user, it cannot be taxable under the federal estate, gift and generation-skipping transfer taxes.[120]

 

Assuming a digital asset could be transferred or assigned at death, the term of service that expressly prohibit users profiting from their accounts would render most digital assets worthless.  For example, if an asset generated income, such as a self-hosted blog that received advertising income, the transfer or assignment of that blog during the owner’s life, or at death, would be considered a taxable transfer.[121]  Because free Internet social networks and blog sites strictly forbid commercial exploitation of their networks, the accounts most likely have no transferable value.[122]

An interesting digital asset to analyze under the federal estate tax is the email account. The monetary value of most personal email accounts is probably little to none, likely having the same value as a deceased relative’s letters and family documents.  But, the contents of a celebrity’s account could have a tremendous amount of value under the estate tax.

 

For example, if J.D. Salinger had a Yahoo account, imagine the substantial value its contents would have considering his decades of silence since publishing Catcher in the Rye.[123] The simple fact that Yahoo’s terms of service would terminate Salinger’s account upon his death would mean that the digital asset would be excluded from his gross estate.[124]  But if the J.D. Salinger account were registered through Microsoft’s Hotmail, whose terms of service may allow a third-party to access the account’s contents, the value of the contents would be includible in his gross estate.[125]

 

The idea of this analysis is not to argue for the sudden inclusion of digital assets in the gross estate. Rather the lack of a uniform method to deal with digital assets after death can be taken to an absurd level.  Imagine if a person made the decision to join one social network over another based on the estate tax consequences, or how the United States Tax Court interpreted Microsoft’s terms of service[126] versus Yahoo’s terms of service.[127]

 

If the changes recommended in this article were made by service providers or legislators,[128] email accounts would be assets subject to taxation under the estate, gift and generation-skipping transfer taxes.  Nevertheless, because the value of most users’ accounts is probably nominal, transfer taxes should not be a substantial concern for planning a digital estate.

 

IV.       Estate Planning under Service Provider Terms of Service.

 

Terms of service can have various effects on an individual’s estate plan.  By no means should a person make a decision to join or discontinue an account with any particular service provider, based solely on their terms of service, because these terms of service can be modified at any time upon proper notice.[129]

 

As a result, the following analysis of the current terms of service and planning opportunities offered by some of the popular service providers is provided for the sole purpose of demonstrating the need for a uniform method to plan a person’s estate. Readers should not rely upon the following for estate planning purposes.

 

A.        Rights Affected by Terms of Service.

 

There are four terms of service that all users should understand if they are concerned with their digital legacy: (i) ownership of their content, (ii) storage of their content, (iii) termination of the account, and (iv) third-party access to their content.   These four terms play an important role in determining what rights an account user really has in the event of death or incapacity.

 

For example, if an individual were incapacitated, their power of attorney or conservator could be prevented from “preserving” the account content depending upon the particular provider’s terms of service; but another provider’s terms of service might not impose the same restriction.

 

i.          Ownership of Account Content

 

While most users might think their stored digital content is their own property, that is not the case if the content can be deleted or the account terminated due to inactivity (relevant to this paper, if the user died and the account has not been accessed for a period of time).

 

In other words, under the service providers’ terms of service, how far does an ownership right really go? Does ownership mean the underlying pre-uploaded or pre-transmitted content, the content (as stored) in the account, or the “registered account” itself?

 

America Online[130] and Microsoft[131] do not claim ownership over user content transmitted through their services.  These sites simply provide a platform for users to transfer their data.  Microsoft’s “Next of Kin” procedure does preserve the contents of a deceased or incapacitated user’s  account from the “Help” page, but this too could be contradicted or preempted by other terms of service.[132]

 

The terms of service for Yahoo,[133] Myspace,[134] LinkedIn,[135] Twitter,[136] and Facebook[137] are similar in that they recognize a users’ ownership of their original content; users are simply licensing these services to upload their information.  The licenses offered by Yahoo,[138] Facebook,[139] and Twitter,[140] however, allow these providers to use the uploaded content without compensating the user, essentially exploiting user material (whether or not copyrighted) without having to pay for it.

 

Under Google’s Universal terms of service, the content of any user remains the property of the user.[141]  The YouTube service acknowledges the user’s ownership rights in their content, but also provides that use of the service includes a non-exclusive license that will continue after the content is removed from its service.[142]

 

Missing from all of these terms of service is the simple recognition that a user’s ownership rights include (a) the right to freely transfer or assign their stored content, and (b) any moral right a user may have in their account.  The moral rights might include the user’s network of friends, email contacts, followers or comments posted in response to the published content,[143] or the files a user expected their provider to keep or store on the service provider’s server.

 

ii.         Storage of Content

 

Although the more popular service providers acknowledge an individual’s ownership of the content uploaded to their service, this is irrelevant to a digital legacy if the content is not available upon death or incapacity.  This raises some interesting questions, such as how long will the content you created (and purportedly own) be accessible after your death? Or if your coma keeps you off-line for a few months, will the content be there when you awaken?

 

The restriction on the amount of storage provided by Gmail and Google+ may be a concern for users who have years of content stored in their account, as the content could be deleted (or no longer saved) if it is too old or voluminous.[144]

 

Facebook’s terms of service do not make any representations as to how long it will store user content.  Facebook includes a definition of an active user, but does not describe the rights or benefits of being an active user.[145]  There is no term that relates to user content or what could happen to an account if a person is no longer an active user, such as whether their profile or content will remain on Facebook in perpetuity.  User content posted to Facebook will remain on the service, unless the account is terminated or the content removed by the user.  According to Facebook, this means content will be available, but inaccessible to the public.[146]

 

The terms of service for LinkedIn[147] and Yahoo[148] make no representations or warranties regarding the storage of any content hosted through their services.

 

The terms of service for AOL represent that it will neither store any user content nor remove any content if a user’s account is terminated.[149] This term is circuitous because older content may remain on AOL’s server, but it may be removed at AOL’s discretion too.

 

Myspace specifically reserves the right to limit the storage of a user’s profile content.[150] The terms also provide that Myspace has the discretion to delete any content posted or transmitted by a user with or without any reason or notice to the account holder.[151] Twitter expressly reserves the right to remove content and does not guarantee the storage of any content uploaded through its service.[152]  Microsoft disclaims responsibility to store any user content and that it may delete or remove content if a user violates the terms of service.[153]

 

Storage is an expensive cost to service providers and users cannot reasonably expect their content to remain on a server forever.  But service providers need to give their users some assurances that account content will be stored for a reasonable and defined period of time or that the content will be removed from closed accounts.  Service providers could also offer to charge a fee for longer-term content storage, or assist users in backing up their content.

 

iii.        Termination of Account

 

If an account is terminated, it should be obvious that all digital content will be erased or deleted.  But what are the reasons or causes that would give rise to a user’s account being terminated?

 

The Twitter terms of service give Twitter the right to terminate an account or reclaim a username at all times.[154] This right appears to be limited to its users who violate the “Twitter Rules” posted on the site.  Misuse of LinkedIn’s services by violating the “Do’s and Don’ts” will result in the termination of a user’s account.[155] Violating Facebook’s terms of service can also result in a termination of a user’s account.[156]

 

Violations of the terms of service with Myspace may result in the termination of a member’s profile and removal of all content,[157] with the listed prohibitions being (a) the access of another user’s profile, and (b) the sale or transfer of all or a part of a user’s profile.[158]

 

The terms of service for Gmail and Google+ accounts do not restrict (or subject the account to termination) for third party access to an account, however a Youtube account will be terminated if a third party does access the account.[159]  AOL[160] and Yahoo[161] provide that their users’ accounts can be terminated if the account is inactive for a period of time.  Microsoft reserves the right to cancel any of its services for violations of its terms of user, and without notice or any reason to its users.[162]

 

Users should analyze (and regularly review) the terms of service they have with any service provider with whom they have valuable or large volumes of content stored.  The fact that an account (and its contents) could be terminated because the user died or has not accessed that account for a short period of time is a concern.  Temporarily not accessing an account because of a lengthy hospitalization, incapacity, or other medical condition should not be used as an excuse to terminate a user’s account content.

 

iv.        Access to Account

 

The decision to grant or deny access to a digital asset is the entire purpose of this paper.  If a person wanted to continue their digital legacy, are there limitations on a fiduciary from accessing a decedent or ward’s account?

 

The terms of service for Microsoft’s Hotmail and Messenger prohibit the assignment of a user’s account and limit all account use to the registered user only, however there will not be a violation of Microsoft’s terms of use if a user delivered their account to a third party.[163]

 

Google’s general terms of service require that the user of an account be the registered user in order to access the YouTube, Gmail, Google+ and Blogger.com services.[164]  There does not appear to be any penalty for access by persons other than the registered user.

 

A LinkedIn user cannot assign their account or allow another person to access their account without notifying and receiving authorization from LinkedIn.[165]  Facebook prohibits the transfer of a user’s account, disclosure of an account password or access to another user’s account without the written permission of Facebook.[166]

 

Access and use of a Twitter account is allowed only if the party accessing the account has agreed to the Twitter terms of service in advance.[167]

 

Yahoo prohibits access by a third-party to its email and chat service (but does not mention its Flickr service), unless authorized by local law.[168] This could mean that a person might confer authority upon a fiduciary to access their Flickr account, but not Yahoo’s email services.  This is an interesting provision (or oversight) because it could also be interpreted to mean that a power of attorney or conservator is permitted to access the account, but not a personal representative.[169]

 

AOL does not prohibit its users from disclosing or providing access to their accounts, but it disclaims all liability for third-party access to a user’s account.  AOL simply warns its users to safeguard their passwords and user names.[170]

 

If a Myspace account holder discloses their password to another person, the user’s account will not be terminated under ¶4 of the Myspace terms of service.[171]  This provision, however, could also be interpreted to give Myspace the right to terminate a user’s profile in the event a designated agent of the user (e.g., power of attorney, conservator or personal representative) is deemed an assignee of the account under ¶¶2 and 8 of the Myspace terms of service.[172]

 

Whether service providers consider access to an account an assignment of the account is unknown.  Clearly, transferring an account to a beneficiary is an assignment of an ownership interest.  But authorizing an agent to access an account should not be considered the transfer of an ownership interest in the account.

 

B.        Rights of Deceased Users

 

Although a person could be registered with numerous service providers, whatever rights they have in their account after death will be determined by the service provider’s terms of service.  The following is a summary of the rights a decedent might have in their digital assets according to the terms of service of the more popular service providers.

 

i.          Yahoo

 

The only service provider discussed in this article that explicitly denies a user’s post-mortem rights in their digital asset is Yahoo.  According to its terms of service,

 

¶27. General Information. 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.[173]

 

Appointing a digital administrator or beneficiary to a Yahoo account is, therefore, prohibited.  Surviving family members who may have a user’s account password should be careful not to inform Yahoo of the user’s death until such time as the content is backed-up.

 

ii.         Microsoft

 

On February 15, 2012, Microsoft introduced their “Next of Kin” procedure wherein a decedent’s Hotmail contents,[174] which include all email and attachments, address book and contact lists can be delivered to the user’s designees on a DVD.[175]  While Microsoft prevents direct access to the decedent’s accounts, it does recognize the importance of its users’ digital legacies.

 

Following traditional estate planning methods, Microsoft respects the authority conferred upon a power of attorney, conservator, personal representative, or other individual designated by will or trust.[176]  In addition, Microsoft will provide assistance to the appointed person in closing any accounts.

 

While this procedure was referred to in Microsoft terms of use before being amended in January 2012,[177] users should be cautioned against relying on this provision for estate planning purposes because it could change the terms of service.  Nevertheless, Microsoft should be commended for offering this extremely helpful process for families and by recognizing the importance of a decedent’s digital legacy.

 

iii.        Google

 

On February 22, 2012, Google introduced an arduous Two Part process that purports to give survivors of deceased users access to their Gmail (only) account “in rare cases.”[178]  The most glaring problem with the Google Two Part process is that an appointed personal representative will be prohibited from accessing the Gmail contents unless they are able to comply with Part 1 of this process.  In order to comply with Part 1, the appointed person is required to deliver “an email message that you have received at your email address, from the Gmail address in question.”[179]

 

If the deceased user’s appointed fiduciary is a corporate fiduciary (e.g., the trust department of any bank), the odds of having an email from the deceased user’s Gmail account are nil.  If the appointed individual is no longer alive (e.g., a simultaneously killed spouse), or someone with whom the decedent did not email from their Gmail account (e.g., court appointed public administrator or guardian ad litem), Part 1 of the Two Part Process cannot be met.

 

In addition to having to comply with this strange Two Part process, survivors of a deceased Gmail user are also not guaranteed access to the account because Google retains the sole discretion to release the account contents.

 

Any decision to provide the contents of a deceased user’s email will be made only after a careful review, and the application to obtain email content is a lengthy process. Before you begin, please understand that Google may be unable to provide the Gmail account content, and sending a request or filing the required documentation does not guarantee that we will be able to assist you.[180]

 

Users of any of Google’s services (including Gmail) should consider the terms of service of the respective sites for purposes of granting access to their accounts, which include delivering their passwords to a trusted person.  Google’s Universal terms of service do not expressly prohibit (or give rise to a breach in the terms of service for) a decedent’s estate or a digital administrator from accessing the content held in a Gmail, Google+ or any of Google’s other services.

 

By way of contrast, the YouTube terms of service provide that assignments of accounts and unauthorized account access are prohibited.  So if access by an estate is considered an assignment of the account, the access is prohibited[181] and if a personal representative’s use is deemed unauthorized, the account could be terminated.[182]  Depending upon Google’s interpretation, a breach of the terms of service would result in the account being deleted.  If read apart from Google’s Universal terms of service, Blogger.com accounts may be accessed by an estate or digital personal representative.[183]

 

Other than blatantly violating the YouTube service, Google does not provide a deceased user’s family with the ability to terminate any of its Google services.  Without a mechanism that would allow for an account to be removed from the Internet, a decedent’s digital legacy could through Google linger in perpetuity.

 

iv.        LinkedIn

 

Users of LinkedIn are prohibited from assigning their account to a third-party, therefore designating a beneficiary to the account is not allowed.[184]  Granting access to an account by a decedent’s estate should be allowed, unless LinkedIn considered a fiduciary to be a “third-party” assignee.[185]  For purposes of signing into (or accessing) a user’s account, the terms of service provide that this remains the obligation of the user who may authorize access to their account.[186]

 

Interestingly, LinkedIn reserves the right under its privacy policy to “memorialize” a deceased member’s profile if LinkedIn is made aware of a user’s death.[187]  However, there is a “Death Verification Form” to notify LinkedIn of user’s death and a surviving family member can request that the LinkedIn account be closed.[188]  This process requires the person informing LinkedIn of the person’s death include an email from the “email address registered to the deceased member’s account.”

 

v.         AOL

 

The terms of service for AOL strictly prohibit the assignment of the AOL Terms of Service.[189]  This prohibition does not prevent a third-party from accessing the user’s account if the passwords were simply given to the person accessing the account.[190]  As a result, appointing a digital administrator may be allowed, but designating an account beneficiary would be forbidden under the terms of service.

 

AOL does provide limited assistance for access to an account for family members of a deceased AOL user.[191]

 

vi.        Twitter

 

A third-party could have the right to access an account if that third-party accepted Twitter’s terms of service,[192] therefore it appears that a Twitter account could continue after the user’s death by either an appointed beneficiary or fiduciary.

 

Twitter provides support for personal representatives or verified family members to cancel deceased users’ account.[193]

 

vii.       Myspace

 

While the Myspace’s terms of service do not reference a deceased user’s profile or uploaded content, a reasonable interpretation of the term “sale” or “transfer” would not include a decedent’s estate accessing the account.[194]  These terms of service seem to allow the appointment of a digital administrator, but prohibit an account beneficiary.

 

Surviving family members may notify Myspace of a user’s death and attempt to cancel the account, subject to Myspace’s discretion.[195]

 

viii.      Facebook

 

Facebook takes a vastly different approach with its deceased users than the other service providers discussed.  Rather than allowing an individual to access or cancel the users account, it encourages survivors to create a “Tribute Page” for the deceased person.[196]  While the “Page” is not the actual user’s profile, Facebook allows the page to be managed by an “authorized representative,” who may or may not be the representative of the user’s estate.[197]

 

What Facebook does not consider is that the deceased user’s profile persists for many years after a person’s death, unless the definition of a “nonactive” user means deceased users.  Other users can freely post derogatory comments or advertise on the decedent’s profile without any rights reserved for the user’s family.  If the terms of service provided that a non-active user’s profile would be deleted after a period of inactivity, this problem would be solved. But a reasonable interpretation of Facebook’s terms of service is that Facebook prohibits both the appointment of a digital administrator and beneficiary of the user’s profile.[198]

 

Clearly, the terms of service for the most popular and frequently used service providers do not consider how a user might plan their digital estate. Without adopting uniform terms of service for deceased and incapacitated users, service providers neither service nor provide the substantial population of users who (a) rely on their services, and (b) have created tremendous wealth for them.

 

 

V.        ESTATE PLANNING FOR DIGITAL LEGACIES UNDER CURRENT LAW

 

The options available for planning a digital legacy are, admittedly, limited under existing law.  A user can deliver a list of their accounts and passwords to a family member or other trusted person.

 

While access to many accounts would be a violation of the terms of service, the account holder has no choice but to take this risk if they want to preserve their content and avoid having their account(s) terminated.[199]  This is not a very good option, to say the least, but this is the best planning option available to users.

 

The real consideration for planning a digital legacy is whether a designee will honor the user’s restrictions, such as (i) not sharing the content with various people, or (ii) not impersonating a deceased or comatose user?

 

A.        Prepare a Separate Writing Related to Digital Assets

 

A written statement should be prepared in accordance with UPC section 2-513 to provide evidence of the user’s testamentary intent for the handling and disposition of their digital assets.  Although section 2-513 is limited to tangible personal property, a hand-signed (as opposed to eSigned) statement is evidence that can be used if the user’s intent were ever questioned in a probate proceeding.  The writing should include each service provider, account password and email address used to register the account.

 

Bequeathing an account password to someone may seem to be as harmless as giving that person access to an account, but it is actually a gift of the contents in the account.  The user should be aware that anything of value within that account would become the property of the recipient.  This means that the recipient could do whatever he or she desired as the “owner” of the content.

 

If there are reservations about giving someone the contents of the account, the user should include instructions or wishes with their written statement that outline the intended uses for the content.  These wishes may include instructions to terminate or close the account, whether access should be limited to reading, printing, or downloading the content, or whether any of the content should be shared with additional people.  The purpose in preparing this writing is to explain what the user wants to happen with their digital legacy.

 

For example, if a user did not want his or her spouse to access their private email, existing state law probably does not give a spouse the right to access or view the account.[200]  Most terms of service for providers do not include a spousal “right” or “privilege” to accounts, but there could be instances where a court or service provider might be inclined to honor a surviving spouse’s request if the decedent’s intent is unknown.

 

Without a list of instructions or evidence of intent, the consequences could be traumatic for many surviving family members of the user if a court granted carte blanche access to a decedent or incompetent person’s accounts.  So long as the user provides a testamentary instruction that either granted or denied access to their digital asset, this instruction should be honored by most probate courts.

 

Individuals preparing this list (or any other type of instructions) should make a clear reference to the existence of this writing in their power of attorney, will and trust documents.  For purposes of safekeeping their instructions, the user must make its existence known to the person(s) designated as their beneficiary, including where it may be found in the event of death or incapacity.

 

B.        Appointment of a Digital Administrator

 

Appointing a digital administrator is important for a user’s digital legacy and to limit potential liabilities in the event an account is not accessed.  If a digital asset contained sensitive information, for example an email that subjected the user to liability, that liability will carry over to the estate.[201]

 

If a personal representative failed, or did not take reasonable action, to gain access to a decedent’s email account, there could be personal liability for any damages suffered by the estate as a result of their inaction.[202]  For example, if there were a time sensitive email in the decedent’s account or an online billing were not discontinued by the personal representative.  At a minimum, if the decedent expressly conferred authority on the personal representative, the fiduciary would know in advance that it has potential exposure if it does not attempt to access the decedent’s accounts.  If the decedent appointed a fiduciary and a digital administrator,[203] the fiduciary should be relieved of any liability for the unknown contents in the accounts.

 

A person’s estate plan should include an appointment of a special digital administrator or a reference to digital assets as something the fiduciary has the authority to manage. The digital administrator’s authority to access the accounts should be clearly defined as:

(i) specific (e.g., terminate the accounts or notify service providers of the user’s death),

(ii) limited (e.g., access to  email accounts only, content may be read but not published, the content cannot be shared with certain people, etc.), or

(iii) general (e.g., unfettered access to all email, social networks, and blog accounts).

It is important that the decedent’s intent be clearly expressed as to whom the authority has been conferred.

 

Fiduciary appointments involving digital assets should include a statement that it has been executed by the user in accordance with the SCA, specifically referencing that the user intended the release to be valid under 18 U.S.C.S. §2702(b) and (c).[204]  A statement to this effect is necessary for all power of attorney, personal representative and trustee appointments that include authority over digital assets.

 

Finally, individuals might consider contracting with a commercial agency to handle their post-mortem digital legacy.  Several online organizations offer these services where a person’s accounts, passwords, and appointed individuals are registered and given assistance in the process of post-mortem planning with digital assets.[205]  If a commercial service were designated as the user’s digital administrator, the user is appointing an experienced party that is familiar with the intricacies of digital assets and service providers.  A commercial digital administrator might be analogous to the appointment of a bank or trust company as the fiduciary for the user’s estate or trust.

 

Until the issues analyzed in this article are clearly defined under state and federal law, fiduciaries should be concerned about the digital assets and their hidden liabilities.

 

VI.       PROPOSED STANDARDIZATION OF INTERNET TERMS AND CONDITIONS

 

The best solution for a business problem is to resolve it privately or through an agreement, not with additional legislation or litigation.  Service providers need to recognize the importance their services play in their users’ lives.  People rely heavily on these sites and do have an expectation that the content they upload or transmit through their sites will be preserved, stored and available as the users decide.

 

A.        Overview

 

Before federal legislators impose a statutory method for protecting digital assets, service providers should adopt their own industry model.[206]  This model should offer basic terms of service that (i) grants users a limited right to appoint a person who may access an account, and (ii) sets forth a reliable storage protocol in the event of a user’s death or incapacity.

 

The recommendations proposed below give users an opportunity to appoint a special administrator and a beneficiary of their digital assets.  While these appointments may appear to overlap, their purposes are different.  The principal reason for the separate designations relates to ownership of the content.

 

A beneficiary becomes the owner of a decedent’s account content, whereas the decedent’s estate becomes the owner of an account accessed by a digital administrator.  A digital administrator also has broader authority to access the user’s account in the event of death and incapacity. A beneficiary has a right to access the account contents upon the user’s death only.

 

The proposed terms of service also allow for the appointment of primary and successor administrators and beneficiaries to their accounts.  The reason for allowing successor appointees follows standard estate planning practice to include a successor in the event the primary appointee is deceased or otherwise unavailable.

 

To prevent fraud or misuse of the appointment feature, the proposed terms of service restrict the account to being available only for reading, downloading, saving and printing by the designee.  Under no circumstances should a designee be able to send new messages, post new blogs or upload new content; in other words, impersonate the user.  An automatic reply would be a desirable feature from the service provider if a new message were sent to the account (or profile or blog), such as “this account is no longer active or receiving messages.”

 

To implement the proposed appointments, a provision that required interested users click the feature should be included in service providers’ terms of service, not as a separate “help” or “support” feature.  In addition, users would agree to waive their privacy rights with regard to these appointments.

 

If a user failed to click the separate terms for a designee appointment, their inaction would be a waiver of the transfer rights and the default terms of service for the provider would control.

 

Finally, users should be given an option to click an election that requires the service provider to terminate their account and contents upon receiving notice of the user’s death.[207]

 

B.        Recommended Terms of Service

 

The following terms of service achieve the goals of (i) protecting user content, and (ii) protecting service providers who offer these options:

 

1.       Appointment of Administrator.  An individual user may designate one primary and two successor individuals as their “special administrator” in the event of the user’s death or incapacity.  To appoint a special administrator, the user must submit the name and email address of each designated administrator under the account settings.  Users may change or revoke their appointment at any time.  If a special administrator is not designated or the email address provided by the user is invalid, in the event of the user’s death or incapacity, the account will not be available to any other person and the account will be terminated. If an account is terminated, all data, content and materials contained within the account will be permanently erased, as provided in ¶5 below.

 

2.       Assignment of Account. An individual user may designate one primary and two successor beneficiaries of their account who shall succeed to the account upon the user’s death.  To appoint a beneficiary, the user must provide the name and email address of each designated beneficiary.  Users may change or revoke a beneficiary appointment through their account and privacy settings at any time. If a beneficiary is not designated or the email address provided by the user is invalid, in the event of the user’s death, the account will not be available to any person and the account will be terminated. If an account is terminated, all data, content and materials contained within the account will be permanently erased, as provided in ¶5 below.

 

3.       Access by Digital Administrators and Designated Beneficiaries.  An individual appointed by the user as a digital administrator or beneficiary of an account shall have the limited right to (a) access the user’s account, (b) review the contents of the account, and (c) print, download or save the contents of the account to an external device.  The appointed digital administrator(s) or beneficiary(ies) shall have no right to send or respond to any e-mail or instant message, add or accept new friends or members to the user’s network, or directly communicate with any person from the account or otherwise transmit content through the user’s account.

 

4.       Notice of Death or Incapacity.  A.  If a user appointed a beneficiary or digital administrator in their account settings, notice of the user’s death or incapacity by the appointed beneficiary or digital administrator will result in the designated individual having access as provided in ¶3 above. Notice to the service provider shall be considered valid upon receipt of a death certificate from the appointed individual.

B.  In the event the appointed beneficiary or digital administrator does not notify the service provider of the user’s death or incapacity, the service provider will notify the user when their account has not been accessed for more than one hundred eighty (180) days.  If the user fails to access his or her account for thirty (30) days after this notice has been sent to the user’s registered email account, the service provider will send notice that the account has not been accessed to the email address of the appointed (and successor) digital administrator(s) or designated beneficiary(ies) that the account has been inactive under these terms of service.  If a designated beneficiary or digital administrator does not respond to the service provider’s notice, or does not attempt to access the account, the service provider may terminate the account and delete the contents in accordance with ¶5 below.

 

5.       Termination of the Account.  Accounts that are not accessed for a period of one hundred eighty (180) days will be subject to termination.  Subject to ¶4 above, if the account user appointed a digital administrator, as defined in ¶1, or designated a beneficiary, as defined in ¶2 above, the account will be terminated if more than two hundred forty days elapse without (a) access to the account by the user, (b) notice to the service provider from the appointed digital administrator of the user’s death or incapacity, or (c) the beneficiary has informed the service provider of the user’s death.

 

6.       Waiver of Privacy.  The user acknowledges that the user is over the age of eighteen (18) years old and has the capacity to appoint the parties set forth in ¶¶1 and 2 above.  The appointment of a digital administrator or beneficiary of their account is an express waiver of any privacy rights the user and the user’s heirs, assigns and estate may have against the service provider under any state or federal law, including any rights under Gramm-Leech-Bliley, 15 U.S.C.S. §6801, et seq., Health Insurance Portability and Accessibility Act, 42 U.S.C.S. §1320d, et seq., Fair Credit Reporting Act, 15 U.S.C.S. §1681, et seq., Stored Communications Act, 18 U.S.C.S. §2701, et seq., and Family Education Rights Privacy Act, 20 U.S.C.S. §1232g.

 

Although service providers offer their standard service to users for free, some do offer additional or premium services for a fee.  These “pay services” can include larger data storage, more search features, additional site content, and additional communication applications. There is a level of inconvenience to the service provider (and a tremendous incentive for users to pay for this service) if the recommended terms of service were adopted.  If the cost to service providers preserving digital legacies were so prohibitive, this inconvenience should be offered to users for a nominal charge (e.g., $1 or $5).

 

VII.      PROPOSED CHANGES TO UNITED STATES LAW TO MANAGE A DIGITAL LEGACY

 

Without an industry standard that properly dealt with a deceased or incapacitated user’s digital assets, changes to state and federal law are necessary to give individuals a limited right to plan their digital legacies. At the same time, legislators must exercise restraint in how they regulate Internet service providers, being mindful that less regulation is usually better for consumers and business.

 

It is incumbent upon legislators to deal with the present technology and expectations of Internet users, especially at a time when the federal government continues its push for a paperless (or digital) society through its own policies.[208]

 

State laws properly govern the rights of incapacitated persons, decedents’ estates and most property law issues.[209] If the individual states were given the ability to create their own definitions or method to transfer digital assets,[210] the interests of users and service providers would surely become convoluted.[211]

 

From a practical standpoint, this must be a federal issue because service providers have the ability to maneuver around individual state laws by simply amending their terms of service relative to the choice of law.[212]  From a legal standpoint, federal law protects against the argument that state laws are preempted by one of the many federal privacy laws covering a person’s identifying information.[213]  Therefore, it is incumbent upon Congress to make necessary amendments to current U.S. law.

 

A.        Federal law

 

Congress should adopt one of the following alternatives to resolve the concerns in this article.

 

i.          Alternative One – Creating a Limited Property Right in Digital Assets

 

If an individual had a quasi-property right to the content stored in their email, social network profile and blog accounts, a user could direct their digital legacy as they decided and not according to the service provider’s of terms of service.  But where should this property right be included in the United States Code?

 

The fact that some of the content in a user’s account are “stored electronic communications,” the SCA would seem to be the logical federal law to amend.  The SCA, however, is a criminal privacy statute.  Several courts have interpreted the SCA and held that it cannot be used in non-criminal proceedings, such as requests for the disclosure of stored communications pursuant to a civil subpoena.[214]  The exceptions to SCA, likewise, do not consider the stored communications of a deceased user as a privacy violation.[215] Therefore, creating a property right within the SCA seems illogical considering the nature of Title 18.

 

Creating a section in the Copyright Act to recognize rights in digital assets makes more sense than in the U.S. Criminal Code.[216]  The Copyright Act defines and protects property rights and the interests of intellectual property owners. When it adopted the DMCA in 1998, Congress recognized the popularity of the Internet, as well as the importance of both service providers and the digital medium in protecting copyrights. So important are the service providers in online copyright piracy, the DMCA has an immunity provision for Internet service providers who identify persons who use their services to infringe on the copyrights of others.[217]

 

In 1998, there was also an overwhelming need to grant special status for vessel hull designers under federal law.  As a result, Congress created Chapter 13 in the Copyright Act just for that special class of persons because there was a gap under the existing trademark, patent and unfair competition statutes.[218] Why not make a specially designed provision in the Copyright Act for digital assets?

 

A new chapter in the Copyright Act would allow Congress to create a more limited right than the right it created for vessel hull designers.[219] This chapter could create a moral right for users in their digital assets. The right would have property-like status that a user could assign or direct in the event of death or incapacity.[220]

 

The concept of moral rights is not a new concept in the United States, as the Copyright Act already protects the moral rights of artists under the Visual Artists Rights Act (“VARA”).[221] Under VARA, artists are given a right to object or prevent the “distortion, mutilation or modification” of an artistic work under a theory that any manipulation to their work would cause injury or damage the artist’s name, honor and reputation.[222]  California, Massachusetts and New York provide moral rights to artists in their states with similar protections as the VARA.[223]

 

The moral rights created by VARA, however, protect an artist’s creative integrity during life.[224] These rights allow the artist to prevent a work from being manipulated or changed in such a way that the artist’s reputation might be damaged.[225]   When the artist dies, his or her moral rights are terminated.

 

Today’s web users abandon the moral rights in their digital assets when they delete or remove content, or when they decide not to access an account.  These are conscious decisions; death or incapacity are not conscious decisions and they should not dictate a user’s digital legacy.

 

Considering the personal attachment and reputations people create through email, blogs and social networking, a moral right is an appropriate status that protects the integrity of users’ digital legacies after life. The Copyright Act is clear that an artist’s moral right is a supplement to any other copyright protection the artist may have under the Act.[226]  Therefore, an artist’s moral rights under VARA are not nearly as extensive as a full-blown copyright;[227] a moral right in a digital asset should be similarly limited.

 

If Congress were to adopt an amendment to the Copyright Act (or adopted a new chapter elsewhere in the U.S. Code) it must be a carefully defined amendment. The Copyright Act should simply give protected status for digital assets, such as a limited right protecting the content stored in digital accounts only.  Congress should not make the accounts or the underlying content as copyrighted property.

 

The present law dealing with digital assets is bad public policy.  If a person has testamentary intent and does not want to abandon their digital legacy, the federal law should give people an opportunity to make this decision in advance.  Providing a transferable moral right gives users the opportunity to make their own decisions with regard to their digital legacies.[228]

 

ii.         Alternative Two – Mandatory Terms of Service

 

Implementing the second alternative is as easy as a federally mandated term of service in the same form as the proposed terms set forth in V.B., supra.  The authority to impose these terms of service are Titles 15 and 47 of the United States Code which regulate Commerce and Trade, and Telegraphs, Telephones and Radiotelegraphs; Congress has used the authority conferred upon it by the Constitution to regulate the Internet under these Titles on previous occasions.

 

The Federal Trade Commission (“FTC”) has the authority to prevent unfair methods of competition and seek redress for conduct that may be injurious to consumers.[229]   The FTC has direct authority under E-Sign to provide consumer protection for the validity and legal effect of electronic contracts in interstate and foreign commerce, and must report to Congress if any statutory changes are necessary under E-Sign.[230]

 

Under the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”),[231] the FTC was conferred regulatory authority (along with other federal agencies) to enforce the provisions of the act that related to commercial email sent to consumers.[232]  Under the Children’s Online Privacy Protection Act, the FTC was given the authority to protect the interests of children who surfed the Internet.[233]

 

The FTC is also authorized to seek redress against specific violators of the Federal Trade Commission Act (the “FTC Act”), to promulgate rules to prevent unfair acts and violations, and make recommendations to Congress for legislative changes.[234]  Google and Facebook have been the targets of recent FTC actions based on changes to their privacy policies.[235]

 

But whether service providers are engaging in deceptive or misleading activities to their users is not the point of this article; nor is it to discuss Internet users’ privacy rights.  The FTC has the authority to investigate whether consumers are harmed by not having the ability to control their digital legacies.  If this issue were compelling enough, it can issue appropriate and mandatory terms of service through its regulatory authority under the FTC Act, E-Sign or request the specific authority from Congress.

 

Congress has also delegated authority to the Federal Communications Commission (“FCC”) to regulate various elements of online activities.  For example, the Communications Assistance for Law Enforcement Act (“CALEA”) is a federal law that directly uses Internet service providers as a partner in fighting online crime.[236]

 

Under CALEA and the FCC’s regulations, service providers are already aware of their obligations to Internet users and the digital content transmitted by them. [237]  Providers of “information services” and “electronic messages” can be compelled to amend these terms of service in such a way as to respect the content their users entrust to them as hosts.[238]  If the FCC does not already have the regulatory authority to impose these terms of service, Congress could delegate that authority under Title 47.

 

Congress should take whatever action is necessary to require that service providers allow users the right to provide for a post-mortem disposition of their digital assets.[239] If they are using service providers to enforce criminal laws, why not give a majority of Internet users a limited right to transfer or assign their account to a designated digital administrator or beneficiary.

 

iii.        Immunity

 

In the event Congress were compelled to approve either of the proposed alternatives, any new legislation must include a provision granting service providers immunity from (a) civil suits brought by a user’s surviving family members, and (b) liability under the federal privacy statutes.[240]  Various types of immunities currently exist for service providers under the SCA,[241] DMCA,[242] and the Communications Decency Act,[243] therefore, if either alternative were adopted, service providers would need an additional immunity to protect them from civil actions brought by users and their survivors.

 

There is great potential for “sour grapes” litigation from family members aggrieved by a user’s decision to give access to their digital assets to one person over another or to completely exclude a family’s access.  The privacy statutes and state laws governing wills, trusts and testamentary transfers would be used as a theory for many of these actions. The service providers should not be targeted as the “deep pocket” against whom someone would blame for a user’s unpopular testamentary decision.

 

If an individual failed to designate a beneficiary or administrator for their digital assets, the service provider should not be held liable for their failure to act.

 

B.        State law[244]

 

If Congress did not feel compelled to take action in this area, there are changes that can be made at the state level.  Ideally, states would not take it upon themselves to adopt any of the alternatives (or versions thereof) in VII.A., supra., for their residents.  Any individual state legislation would create an incredible amount of confusion for users and service providers.[245]  It is therefore recommended that the limited changes, as provided hereinafter, be made to state law to recognize digital assets.

 

The UPC was amended a few years ago to recognize electronic signatures.  In the spirit of that amendment, it should be further updated by (i) allowing a person to provide instructions related to digital assets in the event of death or incapacity, (ii) including a provision allowing for the appointment of a digital or special administrator, and (iii) granting fiduciaries the authority to take control of a person’s digital assets.[246]  The special administrator’s authority should be exercised in conjunction with the overall authority conferred upon the personal representative.

 

A new paragraph (28) must be included under section 3-715, Transactions Authorized for Personal Representatives, Exceptions. This new paragraph would provide the following:

 

(28) to access, print, download or otherwise preserve the digital content, including any stored electronic communications under 18 U.S.C.S. 2701, et seq., of any account the decedent created as an account user through a “service provider,” as that term is defined in 17 U.S.C.S. 512(k)(1)(A)

 

A similar provision should be included as section 5-425(26) for the authority of a conservator appointed for an incapacitated person.[247]

 

UPC section 2-510 relates to the doctrine of incorporation by reference, where a testator may incorporate a separate writing or instructions into a will. This section should provide that the contents of an account, as defined in proposed section 3-715(28), can be included in this separate writing. If digital assets were recognized as property under federal law, this section 2-510 would still need to be updated to recognize digital assets as intangible property.

 

Section 2-513 of the UPC authorizes a decedent to include a statement with his or her will to dispose of items of tangible personal property.  The purpose of the written statement is to provide an effective method of disposing a decedent’s personalty without a great deal of effort. In their 2008 Comments to the UPC, the drafters noted that “[t]he typical case covered by this section would be a list of personal effects and the persons whom the decedent desired to take specified items.”[248]  The digital assets, as defined in proposed section 3-715(28), should be included as an asset that designated in a statement by the decedent under section 2-513.

 

Section 3-617 of the UPC provides for the appointment of a special administrator of the decedent’s estate. This should be amended to allow the special administrator to deal with digital assets, as defined in proposed section 3-715(28), separate from the personal represenative.

 

Finally, the UPC allows for an expedited administration to transfer assets by affidavit when the value of the estate is less than $5,000.[249] The purpose of this section is limited to small administrative procedures, but section 3-1201(b) directs transfer agents of securities to honor the affidavit and change the stock registration.  Section 3-1201(a) allows the affidavit process to transfer debt instruments, stocks and chose in actions to designated beneficiaries.  This section should be amended to include the expedited transfer of digital assets, as defined in proposed section 3-715(28).

 

VIII.    CONCLUSION

 

The overall lack of uniformity in the terms of service for some of the most popular Internet service providers is frustrating for estate planning purposes considering the number of people that use email, blogs and social networks.  For anyone who has a preference for or against allowing their digital content to be shared or deleted in the event of their death or incapacity, the current terms of service must be revised.

 

The traditional estate planning tools are of little use to planning a digital legacy.  Until service providers acknowledge the disservice to their customers, the hundreds of millions of daily users may seek alternative service providers who are genuinely concerned with the digital content transferred through their sites.

 



* Daniel S. Hoops is an Assistant Professor, Taxation and Business Law Department, Walsh College, Troy Michigan.  Prof. Hoops received his Bachelor in Music (Trumpet Performance) from the University of Michigan, Juris Doctorate cum laude from the Detroit College of Law Michigan State University and Master of Law (Estate Planning) from the University of Miami.

 

 

© 2012 Daniel S. Hoops  All Rights Reserved



[1]James D. Lamm, www.digitalpassing.com; Molly Wilkens, Privacy and Security During Life, Access After Death: Are they Mutually Exclusive?, 62 Hastings L.J. 1037 (2011); Michael D. Roy, Beyond the Digital Asset Dilemma: Will Online Services Revolutionalize Estate Planning?, 24 Quinn. Prob. Law Journ. 376 (2011); Dennis Kennedy, Estate Planning for Your Digital Assets, Law Practice Today (3/2010); Johnathan J. Darrow and Gerald R. Ferrera, Who Owns a Decedent’s E-Mails: Inheritable Probate Assets or Property of the Network?, 10 N.Y.U. J. Legis. & Pub. Pol’y 281 (2007); Justin Atwater, Who Owns E-mail? Do You Have the Right to Decide the Disposition of Your Private Digital Life?, 2006 Utah L. Rev. 397.

[2]In addition to requiring analysis under Children’s Online Privacy Protection Act, 15 U.S.C.S. §§6501-6506, individual state laws related to parental, custodial and guardianship rights and their relationship to children raise a host of interesting issues for other commentators.

[3]For purposes of pay-networks (e.g., eHarmony.com), the service provider does not rely solely on user content for its revenues, therefore, users should not have as great an expectation for their digital content under this business model.  In addition, many free services have “fee-based” options that give their users additional features, including content storage. These pay-features are also not discussed in this paper.

[4]Because the competition on a gaming site (e.g., blizzard.com’s World of Warcraft) relies on a user’s skill and effort, online games would be manipulated through lifetime and testamentary transfers of credits and other virtual money by fellow players.

But see, Olivia Y. Troung, Virtual Inheritance: Assigning More Virtual Property Rights, 2009 Syracuse Sci. & Tech. L. Rep. 57.

[5]It is worth noting that the issues discussed in this article are relevant in determining the value of an interest owned by deceased shareholder, partner or member if a digital asset were created and owned by a business entity.  For these purposes, a digital asset would be considered a “§197 Intangible” under the Internal Revenue Code, similar to other business intangibles such as goodwill or covenants not to compete.

[6]According to Miniwatts Marketing Group, on March 31, 2011, there were 2.095 billion worldwide users of the Internet. http://internetworldstats.com/stats.htm

[12]http://visualize.yahoo.com (accessed 2/17/2002)

[13]http://press.linkedin.com/about (accessed 2/17/2012).

[14]Anderson and Rainie, The future of social relations, Pew Research Internet and American Life Project, July 2, 2010. http://www.pewinternet.org/Reports/2010/The-future-of-social-relations/Overview.aspx

[15]17 U.S.C.S. §512(k)(1)(A) “service provider” is defined as a provider of online services or network access, or the operator of facilities therefor, including an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.

[16]Federal Trade Commission, Protecting Consumer Privacy in an Era of Rapid Change: A Proposed Framework for Business and Policymakers, at 33 (12/2010) http://www.gov/os/2010/12/10201privacyreport.pdf.

[17]Associated Press, After IPO, Facebook will face pressure to crank up revenue. $4.39 per user wont be enough, 2/2/2012. http://www.washingtonpost.com/business/technology/friending-wall-street-facebook-hopes-to-raise-5-billion-in-highly-anticipated-ipo/2012/02/02/gIQAZL9WjQ_story.html. Also, see Joseph Turow, The Daily You: How the New Advertising Industry is Defining Your Identity and Your Worth, Yale University Press (2011).

See, United States v. Maynard, 615 F.3d 544 at 556-564 (D.C. Cir. 2010).

[18]Unauthorized disclosures under the Stored Communications Act may result in criminal penalties.  See, 18 U.S.C.S. §§2701-2712.

[19]17 U.S.C.S. §512(k)(1)(A).

[20]Federal Trade Commission, Exploring Privacy–A Roundtable Series (12/7/2009) http://www.ftc.gov/bcp/workshops/privacyroundtables/index.shtml.

[21]92% of online adults use email, with 61% using email on a daily basis.  Purcell, Search and email still top the list of most popular online activities, Pew Research Internet and American Life Project, August 9, 2011. http://www.pewinternet.org/Reports/2011/Search-and-email/Report.aspx

[22]Government Accountability Office Report GAO-12-195 SP (October 14, 2011). Total mail volume is expected to decline by 25% and First-Class Mail is expected to decline by 50% by the year 2020.

[23]Radicati Group Inc. (April 19, 2010) there were 2.9 billion email addresses and by 2014, there are projected to be 3.8 billion email addresses. http://www.radicati.com/?p=5290

[24]In October 2011, there were approximately 260 million Gmail users. Daniel Terdiman, Microsoft aiming to clean up Hotmail user’s inbox, CNET News (10/3/2011) http://news.cnet.com/8301-13772_3-20114975-52/microsoft-aiming-to-clean-up-hotmail-users-inboxes/

[25]In October 2011, there were approximately 310 million Yahoo email users. Daniel Terdiman, Microsoft aiming to clean up Hotmail user’s inbox, CNET News (10/3/2011) http://news.cnet.com/8301-13772_3-20114975-52/microsoft-aiming-to-clean-up-hotmail-users-inboxes/

[26]In July 2009, there were 36.4 million AOL users in the U.S.. Erick Schonfeld, Gmail Nudges Past AOL Email in the U.S. to take the No. 3 Spot, Techcrunch.com (8/14/2009) http://techcrunch.com/2009/08/14/gmail-nudges-past-aol-email-in-the-us-to-take-no-3-spot/.

[27]In October 2011, there were approximately 350 million Hotmail users. Daniel Terdiman, Microsoft aiming to clean up Hotmail user’s inbox, CNET News (10/3/2011) http://news.cnet.com/8301-13772_3-20114975-52/microsoft-aiming-to-clean-up-hotmail-users-inboxes/

[28]Internet social networks allow members to populate their personal network by searching their email contact lists. Integrating one type of service with another has helped grow online socializing. See, Madden and Smith, Reputation and Social Media, Pew Research Internet and American Life Project, May 26, 2010. http://www.pewinternet.org/Reports/2010/Reputation-Management/Summary-of-Findings.aspx

[29]Wilkens, supra note 1, 1045-1048.

[30]Section 3-712, Uniform Probate Code (2008). Personal representative’s liability for breach of fiduciary duty includes the failure to take control of the decedent’s estate.

[31]Section 3-703, Uniform Probate Code (2008). Personal representative has standing to sue in the name of the decedent’s estate.

[32]Wilkens, supra note 1.

[33]Purcell, Search and email still top the list of most popular online activities, Pew Research Internet and American Life Project, August 9, 2011. http://www.pewinternet.org/Reports/2011/Search-and-email/Report.aspx

[34]The actual number of blogs is relatively unknown:  WordPress.com provides that it has 15.1 million hosted blogs and 17.4 million self-hosted blogs (http://en.wordpress.com/stats/stats last accessed 3/9/2012).  The statistics for blogger.com, blogspot.com, TypePad and other popular providers were not available to the author.  The Nielson Company’s BlogPulse.com reported on December 23, 2011 that there were 180,618,990 identified blogs. (http://www.blogpulse.com).  The figure reported by Neilson Company did not include the membership accounts for Twitter, YouTube or Flicker.

[35]See, discussion III.C., infra.

[36]See GoDaddy.com Terms of Service. ¶15. SUCCESSORS AND ASSIGNS.  These Terms of Use shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. (http://www.godaddy.com/Agreements/ShowDoc.aspx?pageid=TOU&ci=20801&app_hdr=0  accessed 3/9/2012)

[37]To review a specific state’s statute related to decedents’ estates and incapacitated persons’ estates, the following is a link to the statutes of all fifty states. http://estate.findlaw.com/probate/probate-court-laws/estate-planning-law-state-probate.html

[38]Id.

[39]See, section 3-711 of the Uniform Probate Code (“UPC”).

[40]UPC §§3-701 through 3-702.

[41]UPC §3-704.

[42]See, UPC §3-201, et seq.

[43]See, UPC §5-401, et seq.

[44]A power of attorney can be springing (effective only upon the person’s disability) or general (effective immediately, including if the person has full capacity). See, section 109, Uniform Power of Attorney Act. http://www.law.upenn.edu/bll/archives/ulc/dpoaa/2008_final.htm

[45]See, UPC §§5-501 through 5-505.

[46]Conn. Gen. Stat. §45a-334a; Idaho Code 15-3-715(28); Ind. Code §29-1-13-1.1; Okla. Stat. tit. 58, §269; and R.I. Gen. Laws §33-27-3.

[47]Idaho Code 15-5-424(3)(z).

[48]Another scholarly article took a different perspective by making the analogy that service providers and email users are in a bailment relationship. See, Darrow and Ferrera, supra. note 1 at 301-311.

[49]Restatement (First) of the Law of Property, §117 (1936); In re Estate of Rider, 711 A.2d 1018 (Pa.Super.Ct. 1998); Meadows v. Belknap, 483 S.E.2d 826 (W.Va. 1997); Matter of Estate of Fisher, 169 Misc. 2d 412, 645 N.Y.S.2d 1020 (Sur.Ct. 1996).

[50]For example, see, Microsoft Terms of Use.  MATERIALS PROVIDED TO MICROSOFT OR POSTED AT ANY MICROSOFT WEB SITE. . . .The licenses granted in the preceding sentences for a Images will terminate at the time you completely remove such Images from the Services, provided that, such termination shall not affect any licenses granted in connection with such Images prior to the time you completely remove such Images. . . .

http://www.microsoft.com/about/legal/en/us/IntellectualProperty/Copyright/Default.aspx#E1  accessed 3/9/2012).

[51]See discussion IV.A., infra.

[52]A nice feature offered by Microsoft is a procedure that allows representatives of both incapacitated persons and decedents to close a user’s account. See, https://windowslivehelp.com/solution.aspx?solutionid=2aa89618-2244-4187-8383-39b5503587f5  (accessed 3/9/2012).

Note:  Google’s Gmail, AOL, LinkedIn, Facebook, Twitter and Myspace have different procedures for surviving family members interested in terminating a deceased user’s account. See, IV.B., infra.

[53]See discussion at IV, infra.

[54]Yahoo, Microsoft, Google, AOL, LinkedIn, Myspace, Twitter and Facebook have various policies that may allow a user’s family to close a decedent’s account. See, discussion at IV.B., infra.

[55]Robertson v. Wegmann, 436 U.S. 584, 589 (1978) “State statutes governing the survival of state actions do exist, however. These statutes, which vary widely with regard to both the types of claims that survive and the parties as to whom survivorship is allowed, see W. Prosser, Law of Torts 900-901 (4th ed. 1971), were intended to modify the simple, if harsh, 19th-century common-law rule: “[An] injured party’s personal claim was [always] extinguished . . . upon the death of either the injured party himself or the alleged wrongdoer.” Moor v. County of Alameda, 411 U.S. 693, 702 (1973)”.

[56]Mineer v. Williams, 82 F.Supp.2d 702 (E.D. Ky. 2000); Estate of Benson v. Minnesota Board of Medical Practice, 526 N.W. 2d 634 (Minn.Ct.App. 1995)

[57]Grimes v. CBS Broadcast International, 905 F.Supp. 964 (N.D. Okla. 1995); Flynn v. Higham, 149 Cal.App.3d 677, 197 Cal.Rptr. 145 (2d. Dist. 1983); James v. Delilah Films, Inc., 144 Misc. 2d 374, 544 N.Y.S.2d 447 (Sup. 1989); Lugosi v. Universal Pictures, 25 Cal.3d 813, 160 Cal.Rptr. 323, 603 P.2d 425 (1979).

[58]See, Henry H. Perritt, Jr., Jurisdiction in Cyberspace, 41 Vill. L. Rev. 1 (1996); Jack L. Goldsmith, Against Cyberanarchy, 65 U. Chi. L. Rev. 1199 (1998); David G. Post, Governing Cyberspace: Law, 24 Santa Clara Computer & High Tech L. J. 883 (2008); Symeon C. Symeonides, Choice of Law in Cross-Border Torts: Why Plaintiffs Win and Should, 61 Hastings L. J. 337 (2009).

[59]See Wilkens, supra n. 1 at 1048-1060 for a discussion on the privacy and security issues that affect estate administrations.

[60]18 U.S.C.S. §2510 provides in part: (15) “electronic communication service” means any service which provides to users thereof the ability to send or receive wire or electronic communications; (17) “electronic storage” means—(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication.

[61]18 U.S.C.S. §§2701-2712.  See also Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508.

[62]Title 17, United States Code.

[63]Under SCA, there are exceptions to the disclosure of stored communications, including when a user authorized the release of a stored communication (18 U.S.C.S. §2701(c)(2), to an addressee or intended recipient of such communication or an agent of such addressee or intended recipient (18 U.S.C.S. §2702(b)(1), and with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of remote computing service (18 U.S.C.S. §2702(b)(3).

[64]See, 1998 Digital Millennium Copyright Act, P.L. 105-304.

[65]17 U.S.C.S §102(a).

[66]17 U.S.C.S. §301(a).

[67]17 U.S.C.S. §411(a).

[68]Shannon E. Trebbe, Enhancing Copyright Protection for Amateur Photographers: A Proposed Business Model, 52 Ariz. L. Rev. 97 (2010).

[69]Warner Bros. Entertainment, Inc. v. X One X Productions, 644 F.3d 584 (8th Cir. 2011).

[70]17 U.S.C.S. §§101 and 103.  But, see Darden v. Peters, 488 F.3d 277 (4th Cir. 2007), cert. den. 552 U.S. 1230.

[71]Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

[72]Id.

[73]The purpose of the definition of “compilation” is to emphasize that collections of facts are not copyrightable per se and section 101 does not provide protection for collections of facts that are selected, coordinated and arranged in a way that lacks utter originality. Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).

[74]Salinger v. Random House, Inc., 811 F.2d 90 (2nd Cir. 1987).

[75]The right to publish a work is a valuable and distinct right from the ownership of the physical work.17 U.S.C.S. §106.

Ownership of a copyright and the material object underlying the copyright are distinct things under the Copyright Act.17 U.S.C.S. §202; Bateman v. Mnemonics, Inc., 79 F.3d 1532 (11th Cir. 1996).

[76]Eric Schlachter, The Intellectual Property Rennaisance in Cyberspace: Why Copyright Law Could Be Unimportant on the Internet, 12 Berkley Tech. L.J. 15 (1997) (forwarding email could be microinfringements); Eric Goldman, A Road to No Warez: The No Electronic Theft Act and Criminal Copyright Infringement, 82 Or. L. Rev. 369 (2003); Ruth L. Okediji, Trading Posts in Cyberspace: Information Markets and the Construction of Proprietary Rights, 44 B.C. L. Rev. 545 (2003).

[77]See, DMCA 512 safeharbor for service providers who actively work with copyright owners to remove infringing transmissions.17 U.S.C.S. §512.

[78]Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985).

[79]See, RayMing Chang, “Publication” Does Not Really Mean Publication: The Need to Amend the Definition of Publication in the Copyright Act, 33 AIPLA Q.J. 225, 232 (2005); Julia Marter, When and Where Does an Internet Posting Constitute Publication? Interpreting Moberg v. 33T LLC, 21 Fordham Intell. Prop. Media & Ent. L.J. 495 (2011).

[80]Nitke v. Gonzalez, 413 F.Supp.2d 262 (S.D.N.Y. 2006); Getaped.com, Inc. v. Cangemi, 188 F.Supp.2d 398 (S.D.N.Y. 2001).

[81]17 U.S.C.S. §101. To perform or display a work “publicly” means— (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

To “transmit” a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.

See, Getaped.com, Inc. v. Cangemi, 188 F.Supp.2d 398 (S.D.N.Y. 2002); Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 194 F.3d 1211 (11th Cir. 1999); Aerospace Services Intern. v. LPA Group, Inc., 57 F.3d 1002 (11th Cir. 1995).

[82]Copyright laws are meant to motivate the creativity of authors by providing rewards for their efforts, while allowing the public access to the creative genius of the authors. See, Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984); Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc., 342 F.3d 191 (3rd Cir. 2003); Bond v. Blum, 317 F.3d 385 (4th Cir. 2003).

[83]Note: Users who have reservations about posting a blog or sharing their original content through a service provider should either not post their content or register their work with the Copyright Office.  Once the work is registered, the user can link the work through their blog or social network profile.  Failing to register a work or blindly publishing a work through a social network is the fault of no one, but the author.

[84]Electronic Signatures in Global and National Commerce Act, 15 U.S.C.S. §7001, et seq.; National Conference of Commissioners on Uniform State Laws, Uniform Electronic Transactions Act. http://www.law.upenn.edu/bll/archives/ulc/fnact99/1990s/ueta99.htm

[85]Breman v. Zapata Off-Shore Co., 407 U.S. 1 (1972).

[86]Leatherwood v. Cardservice Int’l, Inc., 929 So.2d 616 (Fla. Dist. Ct. App. 2006); DeJohn v. The .TV Corporation Int’l, 245 F. Supp. 913 (N.D. Ill. 2003); Forrest v. Verizon Comm., Inc., 805 A.2d 1007 (D.C. App. Ct. 2002); Barnett v. Network Solutions, Inc., 38 S.W.3d 200 (Tex. App. 2001).

[87]National Conference of Commissioners on Uniform State Laws, Uniform Electronic Transactions Act. http://www.law.upenn.edu/bll/archives/ulc/fnact99/1990s/ueta99.htm; 15 U.S.C.S. §7001, et seq.

[88]Page 1, Federal Trade Commission and Department of Commerce Recommendation to Congress, Electronic Signatures in Global and National Commerce Act: The Consumer Consent Provision in Section 101(c)(1)(C)(ii) (June 2001). http://www.ftc.gov/os/2001/06/esign7.htm

[89]Electronic Privacy Information Center, Social Network Privacy, http://epic.org/privacy/socialnet/ (accessed 3/6/2012); Privacy Rights Clearinghouse, Fact Sheet 18: Online Privacy: Using the Internet Safely, http://www.privacyrights.org/fs/fs18-cyb.htm (2/2012); Ki Mae Heussner, Quitting Facebook: What Happens When You Deactivate? (ABC News 5/11/2010) http://abcnews.go.com/Technology/quitting-facebook-deactivate/story?id=10607753; Jessica Guynn, Google Buzz poses a major privacy risk for kids, analyst (and parent) says, LA Times (2/22/2010) http://latimesblogs.latimes.com/technology/2010/02/google-buzz-privacy-kids.html.

[90]15 U.S.C.S. §7002(a)(1).

Note: As of the date of this publication, the UETA has been adopted by forty-seven (47) states with New York, Illinois and Washington being the hold-outs.

[91]See, III.D., infra.

[92]Jennifer Femminella, Online Terms and Conditions Agreements: Bound by the Web, 17 St. John’s J. Legal Commentary (2003); Robert Lee Dickens, Finding Common Ground in the World of Electronic Contracts: The Consistency of Legal Reasoning in Clickwrap Cases, 11 Marq. Intell. Prop. L. Rev. 379 (2007); Ty Tasker and Daryn Pakcyk, Cyber-Surfing on the High Seas of Legalese: Law and Technology of Internet Agreements, 18 Alb. L. J. Sci. & Tech. 79 (2008). See, Ira S. Rubinstein, et al., Data Mining and Internet Profiling: Emerging Regulatory and Technological Approaches, 75 U.Chi.L.Rev. 261 (2008).

[93]Novak v. Overature Services, 309 F.Supp.2d 446, 451 (E.D. N.Y. 2004) (clicking acceptance of the terms of service is not acceptance of the agreement); Forrest v. Verizon Comm., Inc., 805 A.2d 1007, 1010 (D.C. App. Ct. 2002); America Online, Inc. v. Booker, 781 So. 2d 423 (Fla. Dist. Ct. App. 2001); Koch v. America Online, Inc., 139 F.Supp.2d 690 (D.Md. 2000).

[94]United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009); Pichey v. Ameritech Interactive Media Services, 421 F.Supp. 1038 (W.D. Mich. 2006); Register.com, Inc. v. Verio, Inc., 126 F.Supp. 2d 238 (S.D.N.Y. 2000); Caspi v. Microsoft Network, 732 A.2d 528 (N.J. Super. Ct. App. Div. 1999). James J. Tracy, Legal Update, Browsewrap Agreements: Register.com v. Verio, Inc., 11 B.U. J. Sci. & Tech. L. 164, 171 (2005); Also, see Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991).

But see, Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593, 606 (E.D. Pa. 2007) (terms of service can be held unenforceable if there are no market alternatives to a particular service).

[95]See, IV., infra.

[96]See, Mike Masnick, Supreme Court Chief Justice Admits He Doesn’t Read Online EULAS or Other “Fine Print,” Techdirt (10/22/2010) http://www.techdirt.com/articles/20101021/02145811519/supreme-court-chief-justice-admits-he-doesn-t-read-online-eulas-or-other-fine-print.shtml.

[97]I.Lan Systems, Inc. v. Netscout Service Level Corp., 183 F.Supp. 2d 328 (D.Mass. 2002); Specht v. Netscape Communications Corp., 150 F.Supp. 2d 585 (S.D.N.Y. 2001); Decker v. Circus Circus Hotel, 49 F.Supp.2d 743 (D.N.J. 1999); M.A. Mortenson Co., Inc. v. Timberline Software Corp., 970 P.2d 803 (Wash.App. 1999).

[98]Register.com, Inc. v. Verio, Inc., 126 F.Supp.2d 238 (S.D.N.Y. 2000); Briceno v. Sprint Spectrum, L.P., 911 So.2d 176 (Fla. Dist. Ct. App. 2005); Hubbert v. Dell Corp., 835 N.E.2d 113 (Ill. App. Ct. 2005);

But, see Specht v. Netscape Communications Corp., 150 F.Supp.2d 585 (S.D.N.Y. 2001) (notice was inadequate because users did not affirmatively accept the terms of service) Douglas v. U.S. District Court for Central District of California, 495 F.3d 1062 (9th Cir. 2007); BellSouth Communications System, L.L.C. v. West, 902 So.2d 653 (Ala. 2004) (change to terms of service unenforceable because provider could not prove that user continued to access the service after the change in terms was posted).

[99]See, fn. 85.

[100]¶13. Amendments. (1) We can change this Statement if we provide you notice (by posting the change on the Facebook Site Governance Page) and an opportunity to comment.  To get notice of any future changes to this Statement, visit our Facebook Site Governance Page and become a fan. (2) For changes to sections 7, 8, 9, and 11 (sections relating to payments, application developers, website operators, and advertisers), we will give you a minimum of three days notice. For all other changes we will give you a minimum of seven days notice. All such comments must be made on the Facebook Site Governance Page. (3) If more than 7,000 users comment on the proposed change, we will also give you the opportunity to participate in a vote in which you will be provided alternatives. The vote shall be binding on us if more than 30% of all active registered users as of the date of the notice vote. (4) We can make changes for legal or administrative reasons, or to correct an inaccurate statement, upon notice without opportunity to comment. (http://www.facebook.com/legal/terms?ref=pf accessed 3/9/2012).

[101]ACCEPTANCE OF TERMS. The services that Microsoft provides to you are subject to the following Terms of Use (“TOU”). Microsoft reserves the right to update the TOU at any time without notice to you. The most current version of the TOU can be reviewed by clicking on the “Terms of Use” hypertext link located at the bottom of our Web pages.

http://www.microsoft.com/about/legal/en/us/IntellectualProperty/Copyright/Default.aspx#E1  accessed 3/9/2012).

[102]USE OF SERVICES. . . . Microsoft reserves the right to terminate your access to any or all of the Communication Services at any time, without notice, for any reason whatsoever. http://www.microsoft.com/about/legal/en/us/IntellectualProperty/Copyright/Default.aspx#E1  accessed 3/9/2012).

[103]See, http://www.google.com/intl/en/policies/terms/ accessed 3/9/2012), YouTube Terms of Service ¶1B. (http://www.youtube.com/t/terms accessed 3/9/2012); Myspace.com Terms of Use Agreement (http://www.myspace.com/Help/Terms?pm_cmp=ed_footer accessed 3/9/2012); Twitter Terms of Service (http://twitter.com/tos accessed 3/9/2012); LinkedIn User Agreement ¶9.E. (http://www.linkedin.com/static?key=user_agreement accessed 3/9/2012); AOL Terms of Service, General Legal Terms (http://legal.aol.com/terms-of-service/full-terms/ accessed 3/9/2012).

[104]http://www.google.com/policies/ (accessed February 12, 2012).

[105]The states that have adopted the UPC are:  Alaska, Arizona, Colorado, Florida, Hawaii, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska, New Mexico, North Dakota, South Carolina, South Dakota and Utah. National Conference of Commissioners on Uniform State Laws, http://www.nccusl.org/Act.aspx?title=Probate%20Code accessed 1/2/2012.

Note:  the UPC was amended in 2008, as of 1/2/2012 Colorado, New Mexico, North Dakota and Utah follow the 2008 UPC. See, http://www.nccusl.org/Act.aspx?title=Probate%20Code%20Amendments%20%282008%29

[107]UPC §3-709.

[108]UPC §3-711 (the personal representative acts as the trustee of the assets for the benefit of the estate); UPC §5-425; Article 2, Uniform Power of Attorney Act. http://www.law.upenn.edu/bll/archives/ulc/dpoaa/2008_final.htm.

[109]UPC §§3-715 and 5-425(25).

[110]Id.

[111]Microsoft Terms of Service ¶4. Your service account, associated accounts, and accounts from third parties. . . .You must keep your accounts and passwords confidential and not authorize any third party to access or use the service on your behalf, unless we provide an approved mechanism for that. . .(http://explore.live.com/microsoft-service-agreement?mkt=en-us accessed 12/30/2011).

[112]https://windowslivehelp.com/solution.aspx?solutionid=2aa89618-2244-4187-8383-39b5503587f5 accessed 3/9/2012.

See, discussion related to terms of service and accounts of deceased users for other service providers in IV.B., infra.

[113]See, UPC §1-201 General Definitions (41) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; . . .(45) “Sign” means, with present intent to authenticate or adopt a record other than a will: (A) to execute or adopt a tangible symbol; or (B) to attach to or logically associate with the record an electronic symbol, sound, or process.

National Conference of Commissioners on Uniform Laws, Annual Meeting 11/2008, http://www.law.upenn.edu/bll/archives/ulc/upc/2008amends.htm

[114]Conn. Gen. Stat. §45a-334a; and R.I. Gen. Laws §33-27-3.

[115]Ind. Code §29-1-13-1.1 and Okla. Stat. tit. 58, §269.

[116]Idaho Code §§15-3-715 and 15-5-424.

[117]See, Cal. Civ. Code §987(h)(2).

[118]26 U.S.C.S. §§2001(a), 2501(a)(1) and §2601.

[119]26 U.S.C.S. §2036(a) (transfers with a retained life estate) and §2038(a) (revocable transfers).

[120]See, 26 U.S.C.S. §2033. For purposes of the estate tax, the gross estate includes all property in which the decedent had an interest in property at death.

[121]26 U.S.C.S. §§2033 and 2512(a); 26 C.F.R. §20.2033-1(b).

[122]26 C.F.R. §20.2033-1(a). See, Twitter, The Twitter Rules-Spam and Abuse at http://support.twitter.com/articles/18311-the-twitter-rules accessed 3/9/2012; LinkedIn User Agreement, ¶7.B. at http://www.linkedin.com/static?key=user_agreement accessed 3/9/2012; Facebook, Pages Terms ¶7 at http://www.facebook.com/page_guidelines.php accessed 3/9/2012; Google, Terms of Service http://www.google.com/intl/en/policies/terms/ accessed 3/9/2012; Yahoo, Terms of Service 12 at http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html accessed 3/9/2012; YouTube Terms of Service ¶4D. http://www.youtube.com/t/terms accessed 3/9/2012.

[123]See, Salinger v. Random House, Inc., 811 F.2d 90 (2nd Cir. 1987) (Salinger successfully sought injunctive relief against the publication of his personal letters which were valued in excess of $500,000).

[124]Rev. Rul. 66-86, 1966-1 C.B. 216.

[125]26 U.S.C.S. §2037(a)(1) requires the inclusion of assets in the gross estate where ownership is transferred as a result of the owner’s death.

[126]If Microsoft’s procedure were incorporated into their terms of service there would be a stronger argument for a decedent’s right to transfer their account. Until it revised its terms of use on January 26, 2012, Microsoft’s terms of service referred to “a mechanism” that was not necessarily the equivalent to a contractual obligation. See, https://windowslivehelp.com/solution.aspx?solutionid=2aa89618-2244-4187-8383-39b5503587f5  (accessed 3/9/2012).

[127]¶27. General Information. 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. Yahoo Terms of Service (http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html accessed 3/9/2012)

[128]See, VI-VII., infra.

[129]See, notes 91-93, supra.

[130]Posting Content on Our Services. . .Except as otherwise provided in this TOS, you or the owner of any content that you post to our Services retain ownership of all rights, title, and interests in that content. America Online Terms of Service (http://legal.aol.com/terms-of-service/full-terms/ accessed on 3/9/2012).

[131]MATERIALS PROVIDED TO MICROSOFT OR POSTED AT ANY MICROSOFT WEB SITE. Microsoft does not claim ownership of the materials you provide to Microsoft (including feedback and suggestions) or post, upload, input or submit to any Services or its associated services for review by the general public, or by the members of any public or private community, (each a “Submission” and collectively “Submissions”) (http://explore.live.com/microsoft-service-agreement?mkt=en-us accessed 3/9/2012).

[133]¶9. CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE YAHOO! SERVICES. Yahoo! does not claim ownership of Content you submit or make available for inclusion on the Yahoo! Services. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services, you grant Yahoo! the following worldwide, royalty-free and non-exclusive license(s). . . . Yahoo Terms of Service (http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html accessed 3/9/2012).

[134]¶6. Proprietary Rights in Content on Myspace. 6.1 Myspace does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you transmit, submit, display or publish (“post”) on, through or in connection with the Myspace Services. After posting your Content on, through or in connection with the Myspace Services, you continue to retain any such rights that you may have in your Content, subject to the limited license herein. Myspace.com Terms of Use Agreement (http://www.myspace.com/Help/Terms?pm_cmp=ed_footer accessed 3/9/2012).

[135]¶2. Your Obligations. B. License and warranty for your submissions to LinkedIn. You own the information you provide LinkedIn under this Agreement, and may request its deletion at any time, unless you have shared information or content with others and they have not deleted it, or it was copied or stored by other users. (http://www.linkedin.com/static?key=user_agreement#pri-10 accessed 3/9/2012)

[136]Twitter gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software that is provided to you by Twitter as part of the Services. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Twitter, in the manner permitted by these Terms.

Your Rights. You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). . . .Twitter has an evolving set of rules for how ecosystem partners can interact with your content. These rules exist to enable an open ecosystem with your rights in mind. But what’s yours is yours – you own your Content (and your photos are part of that Content). (http://twitter.com/tos accessed on 3/9/2012).

[137]¶2. Sharing Your Content and Information. You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. (http://www.facebook.com/legal/terms?ref=pf accessed 3/9/2012).

[138]¶9. CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE YAHOO! SERVICES. Yahoo! does not claim ownership of Content you submit or make available for inclusion on the Yahoo! Services. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services, you grant Yahoo! the following worldwide, royalty-free and non-exclusive license(s). . . . Yahoo Terms of Service (http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html accessed 3/9/2012).

[139]¶2. Sharing Your Content and Information. (http://www.facebook.com/legal/terms?ref=pf accessed 3/9/2012).

[140]Your Rights. You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use. Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services. We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media. Twitter Terms of Service (http://twitter.com/tos accessed 3/9/2012).

[141]Your Content in our Services.  Some of our Services allow you to submit content. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours.

When you upload or otherwise submit content to our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. This license continues even if you stop using our Services (for example, for a business listing you have added to Google Maps). Some Services may offer you ways to access and remove content that has been provided to that Service. Also, in some of our Services, there are terms or settings that narrow the scope of our use of the content submitted in those Services. Make sure you have the necessary rights to grant us this license for any content that you submit to our Services. (http://www.google.com/intl/en/policies/terms/ accessed 3/9/2012)

[142]¶6.  Your Content and Conduct. C.  . . . The above licenses granted by you in video Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your videos from the Service. You understand and agree, however, that YouTube may retain, but not display, distribute, or perform, server copies of your videos that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable. YouTube Terms of Service (http://www.youtube.com/t/terms accessed on 3/9/2012).

[143]See, litigation related to former employee’s 17,000 Twitter followers (Phone Dog, L.L.C. v. Kravitz, Case No. 3:11-cv-03474-MEJ, U.S. District Court for the Northern District California).

[144]Modifying and Terminating our Services.  We are constantly changing and improving our Services. We may add or remove functionalities or features, and we may suspend or stop a Service altogether.  You can stop using our Services at any time, although we’ll be sorry to see you go. Google may also stop providing Services to you, or add or create new limits to our Services at any time.  We believe that you own your data and preserving your access to such data is important. If we discontinue a Service, where reasonably possible, we will give you reasonable advance notice and a chance to get information out of that Service. Our Warranties and Disclaimers. We provide our Services using a commercially reasonable level of skill and care and we hope that you will enjoy using them. But there are certain things that we don’t promise about our Services. OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS OR ADDITIONAL TERMS, NEITHER GOOGLE NOR ITS SUPPLIERS OR DISTRIBUTORS MAKE ANY SPECIFIC PROMISES ABOUT THE SERVICES. FOR EXAMPLE, WE DON’T MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES, THE SPECIFIC FUNCTION OF THE SERVICES, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE PROVIDE THE SERVICES “AS IS”.  SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES. (http://www.google.com/intl/en/policies/terms/ accessed 3/9/2012).

[145]¶17. Definitions. (8) By active registered user we mean a user who has logged into Facebook at least once in the previous 30 days. (http://www.facebook.com/legal/terms?ref=pf accessed 3/9/2012).

[146]¶2. Sharing Your Content and Information. (2) When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others). (http://www.facebook.com/legal/terms?ref=pf accessed 3/9/2012).

[147]¶4. Our Rights and Obligations. A. Services Availability. LinkedIn further reserves the right to withhold, remove and or discard any content available as part of your account, with or without notice if deemed by LinkedIn to be contrary to this Agreement. For avoidance of doubt, LinkedIn has no obligation to store, maintain or provide you a copy of any content that you or other Users provide when using the Services. (http://www.linkedin.com/static?key=user_agreement accessed 3/9/2012)

[148]¶13. GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that Yahoo! may establish general practices and limits concerning use of the Yahoo! Services, including without limitation the maximum number of days that email messages, message board postings or other uploaded Content will be retained by the Yahoo! Services, . . . .You agree that Yahoo! has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Yahoo! Services. You acknowledge that Yahoo! reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that Yahoo! reserves the right to modify these general practices and limits from time to time. Yahoo Terms of Service (http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html accessed 3/9/2012).

[149]Registering a User Name and Keeping Your Account Active. After we terminate or deactivate your account for inactivity, we have no obligation to retain, store, or provide you with any data, information, e-mail, or other content that you uploaded, stored, transferred, sent, mailed, received, forwarded, posted or otherwise provide to us (collectively “posted” or “post”) on the Services and may allow another user to register and use the username. We also have no obligation to remove any public data, content, or other information that you posted on a Service or reactivate your account. (http://legal.aol.com/terms-of-service/full-terms/ accessed 3/9/2012).

[150]¶6. Proprietary Rights in Content on Myspace.  6.7 Myspace reserves the right to limit the storage capacity of Content that you post on, through or in connection with the MySpace Services. Myspace.com Terms of Use Agreement (http://www.myspace.com/Help/Terms?pm_cmp=ed_footer accessed 3/9/2012).

[151]¶2. Term. Myspace reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including, without limitation, private messages, emails and instant messages (collectively, “messages”)) by you, or to deny, restrict, suspend, or terminate your access to all or any part of the Myspace Services at any time, for any or no reason, with or without prior notice or explanation, and without liability.  Myspace.com Terms of Use Agreement (http://www.myspace.com/Help/Terms?pm_cmp=ed_footer accessed 3/9/2012).

[152]The Services are Available “AS-IS”. Your access to and use of the Services or any Content is at your own risk. You understand and agree that the Services is provided to you on an “AS IS” and “AS AVAILABLE” basis. . . Twitter will not be responsible or liable for any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services, or any Content. You also agree that Twitter has no responsibility or liability for the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. (http://twitter.com/tos accessed on 3/9/2012)

[153]USE OF SERVICES. . . . Microsoft reserves the right to terminate your access to any or all of the Communication Services at any time, without notice, for any reason whatsoever; NOTICES REGARDING SOFTWARE, DOCUMENTS AND SERVICES AVAILABLE ON THIS WEB SITE.  IN NO EVENT SHALL MICROSOFT AND/OR ITS RESPECTIVE SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF SOFTWARE, DOCUMENTS, PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR INFORMATION AVAILABLE FROM THE SERVICES.

http://www.microsoft.com/about/legal/en/us/IntellectualProperty/Copyright/Default.aspx#E1  accessed 3/9/2012).

[154]Restrictions on Content and Use of the Services.  We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services and to terminate users or reclaim usernames. (http://twitter.com/tos accessed 3/9/2012).

[155]See, LinkedIn User Agreement, ¶7.B. (http://www.linkedin.com/static?key=user_agreement accessed 3/9/2012).

[156]¶14. Termination. If you violate the letter or spirit of this Statement, or otherwise create risk or possible legal exposure for us, we can stop providing all or part of Facebook to you. We will notify you by email or at the next time you attempt to access your account. You may also delete your account or disable your application at any time. (http://www.facebook.com/legal/terms?ref=pf accessed 3/9/2012).

[157]¶2. Term. Myspace expressly reserves the right to remove your profile and/or deny, restrict, suspend, or terminate your access to all or any part of the Myspace Services if Myspace determines, in its sole discretion, that you have violated this Agreement or pose a threat to Myspace, its employees, business partners, Users and/or the public. Myspace.com Terms of Use Agreement (http://www.myspace.com/Help/Terms?pm_cmp=ed_footer accessed 3/9/2012).

[158]¶8. Content/Activity Prohibited.  8.29  using the account, username, or password of another Member at any time or disclosing your password to any third party or permitting any third party to access your account; 8.30 selling or otherwise transferring your profile, your email address or URL. Myspace.com Terms of Use Agreement (http://www.myspace.com/Help/Terms?pm_cmp=ed_footer accessed 3/9/2012).

[159]¶3. YouTube Accounts. A. In order to access some features of the Service, you will have to create a YouTube or Google account. You may never use another’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify YouTube immediately of any breach of security or unauthorized use of your account. B. Although YouTube will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of YouTube or others due to such unauthorized use. YouTube Terms of Service ((http://www.youtube.com/t/terms accessed on 3/9/2012)

[160]Registering a Username and Keeping Your Account Active. Your username and account may be terminated if you do not sign on a Service with your username at least once every 90 days. If you are registered for fee-based or term-specific Services, we will not terminate your username or account unless they are subject to being terminated for some other reason. . .If you fail to remain active on a specific Service, we may deactivate your access and use of that Service. (http://legal.aol.com/terms-of-service/full-terms/ accessed 3/9/2012)

[161]¶15. TERMINATION Cause for such termination, limitation of access or suspension shall include, but not be limited to, (a) breaches or violations of the TOS or other incorporated agreements or guidelines, . . .(e) extended periods of inactivity. . . .Termination of your Yahoo! account includes any or all of the following: (a) removal of access to all or part of the offerings within the Yahoo! Services, (b) deletion of your password and all related information, files and content associated with or inside your account (or any part thereof), and (c) barring of further use of all or part of the Yahoo! Services. Yahoo Terms of Service (http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html accessed 3/9/2012)

[162]NO UNLAWFUL OR PROHIBITED USE.  As a condition of your use of the Services, you will not use the Services for any purpose that is unlawful or prohibited by these terms, conditions, and notices; USE OF SERVICES. . . . Microsoft reserves the right to terminate your access to any or all of the Communication Services at any time, without notice, for any reason whatsoever.

(http://www.microsoft.com/about/legal/en/us/IntellectualProperty/Copyright/Default.aspx#E1  accessed 3/9/2012).

[163]MEMBER ACCOUNT, PASSWORD, AND SECURITY.  If any of the Services requires you to open an account, you must complete the registration process by providing us with current, complete and accurate information as prompted by the applicable registration form. You also will choose a password and a user name. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify Microsoft immediately of any unauthorized use of your account or any other breach of security. Microsoft will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by Microsoft or another party due to someone else using your account or password. You may not use anyone else’s account at any time, without the permission of the account holder. (http://explore.live.com/microsoft-service-agreement?mkt=en-us accessed 3/9/2012).

But, see “Next of Kin” Procedure discussed in IV.B.ii., infra.

[164]Your Google Account.  You may need a Google Account in order to use some of our Services. You may create your own Google Account, or your Google Account may be assigned to you by an administrator, such as your employer or educational institution. If you are using a Google Account assigned to you by an administrator, different or additional terms may apply and your administrator may be able to access or disable your account. Google Terms of Service, effective March 1, 2012 (http://www.google.com/intl/en/policies/terms/ accessed 3/9/2012).

But, see Google’s “Two Part” process for accessing a decedent’s Gmail account discussed in IV.B.iii., infra.

[165]¶10. Linked In User’s Do’s and Don’ts. B. Don’t undertake the following: 7 Use or attempt to use another’s account without authorization from the Company, or create a false identity on LinkedIn; (http://www.linkedin.com/static?key=user_agreement#pri-10 accessed 3/9/2012)

[166]¶4. Registration and Account Security. (8) You will not share your password, (or in the case of developers, your secret key), let anyone else access your account, or do anything else that might jeopardize the security of your account. (9) You will not transfer your account (including any page or application you administer) to anyone without first getting our written permission.

(http://www.facebook.com/legal/terms?ref=pf accessed 3/9/2012).

[167]Basic Terms. You may use the Services only if you can form a binding contract with Twitter and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. (http://twitter.com/tos accessed on 3/9/2012)

[168]¶6. RESTRICTIONS ON USE.  YOU MAY NOT and will not allow any third party to (except to the extent required by local law): . . .; b. Obtain or attempt to obtain unauthorized access to the Services or the Yahoo! Network; Yahoo Global Communications: Additional Terms of Service for Yahoo! Mail and Yahoo! Messenger (http://info.yahoo.com/legal/us/yahoo/mail/en-us/ accessed 3/9/2012).

[169]¶27. General Information. 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. Yahoo Terms of Service (http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html accessed 3/9/2012)

[170]Using our Services. If you elect to store authentication information, such as a username and password, where others may access it, we are not responsible for any loss of personal data or other consequences if someone other than you uses that information to access our services. If you lose a device, such as a laptop, desktop, or smartphone, or a device is stolen containing your username and password, it is up to you to take all the steps necessary to protect yourself. (http://legal.aol.com/terms-of-service/full-terms/ accessed 3/9/2012)

[171]¶4. Password. When you sign up to become a Member, you will also be asked to choose a password. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the account, username, email address or password of another Member at any time or to disclose your password to any third party. Myspace.com Terms of Use Agreement (http://www.myspace.com/Help/Terms?pm_cmp=ed_footer accessed 3/9/2012).

[172]See notes 158 and 159, supra.

[174]What products does the Microsoft Next of Kin process support?

At this time, the Microsoft Next of Kin process supports only Windows Live Hotmail or MSN Hotmail accounts (email accounts ending in @hotmail.com, @live.com, @windowslive.com, or @msn.com). We do not provide support for SkyDrive, MSN Dial-up, or Xbox Live., https://windowslivehelp.com/solution.aspx?solutionid=2aa89618-2244-4187-8383-39b5503587f5 (accessed 3/9/2012)

[177]Microsoft Terms of Service ¶4.You must keep your accounts and passwords confidential and not authorize any third party to access or use the service on your behalf, unless we provide an approved mechanism for that. . .(http://explore.live.com/microsoft-service-agreement?mkt=en-us accessed 12/30/2011).

[181]¶13. Assignment. These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by YouTube without restriction.

YouTube Terms of Service ((http://www.youtube.com/t/terms accessed on 3/9/2012)

[182]¶3. YouTube Accounts. A. In order to access some features of the Service, you will have to create a YouTube or Google account. You may never use another’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify YouTube immediately of any breach of security or unauthorized use of your account. B. Although YouTube will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of YouTube or others due to such unauthorized use. YouTube Terms of Service ((http://www.youtube.com/t/terms accessed on 3/9/2012).

[183]¶1. Description of Service. Blogger is a web publishing service and optional hosting service (the “Service”). You will be responsible for all activities occurring under your username and for keeping your password secure. You understand and agree that the Service is provided to you on an AS IS and AS AVAILABLE basis. Google disclaims all responsibility and liability for the availability, timeliness, security or reliability of the Service or any other client software. Google also reserves the right to modify, suspend or discontinue the Service with or without notice at any time and without any liability to you. (http://www.blogger.com/terms.g accessed 3/1/2012).

[184]A LinkedIn account may be cancelled upon notification of the service that a user is deceased. See, https://help.linkedin.com/app/answers/detail/a_id/2842/kw/death%20of%20a%20member accessed 3/9/2012.

[185]¶9. General Terms. I.  Assignment and Delegation. You may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to you. We may also substitute, by way of unilateral novation, effective upon notice to you, LinkedIn Corporation for any third party that assumes our rights and obligations under this Agreement. (http://www.linkedin.com/static?key=user_agreement accessed 3/9/2012)

[186]¶2.Your Obligations.  D.Sign-In Credentials. You agree to: (1) Keep your password secure and confidential; (2) not permit others to use your account; (3) refrain from using other Users’ accounts; (4) refrain from selling, trading, or otherwise transferring your LinkedIn account to another party; and (5) refrain from charging anyone for access to any portion of LinkedIn, or any information therein. Further, you are responsible for anything that happens through your account until you close down your account or prove that your account security was compromised due to no fault of your own.  See also, ¶10.B.7. Access to another person’s account may be allowed if LinkedIn authorizes the access. (http://www.linkedin.com/static?key=user_agreement accessed 3/9/2012)

[187]¶3.D.Memorializing Accounts. If we learn that a User is deceased, we may memorialize the User’s account. In these cases we may restrict profile access, remove messaging functionality, and close an account if we receive a formal request from the User’s next of kin or other proper legal request to do so. (http://www.linkedin.com/static?key=privacy_policy accessed 3/9/2012)

[189]General Legal Terms. We may assign this contract at any time without notice to you. You may not assign this contact to anyone else. (http://legal.aol.com/terms-of-service/full-terms/ accessed 3/9/2012).

[190]See, Using our Services. (http://legal.aol.com/terms-of-service/full-terms/ accessed 3/9/2012)

[191]Under its help page, AOL provides instructions for a representative of the decedent to close the account. (http://help.aol.com/help/microsite.do?emd=displayKC&docType+kc&extranalld+11605 accessed 3/9/2012).

[192]Basic Terms. You may use the Services only if you can form a binding contract with Twitter and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. (http://twitter.com/tos accessed on 3/9/2012)

[194]See, ¶8.30 selling or otherwise transferring your profile, your email address or URL. Myspace.com Terms of Use Agreement (http://www.myspace.com/Help/Terms?pm_cmp=ed_footer accessed 3/9/2012).

[197]Facebook Pages Terms. ¶1. Any user may create a Page; however, only an authorized representative of the subject matter may administer the Page. Pages with names consisting solely of generic or descriptive terms will have their administrative rights removed. ¶2. Content posted to Pages is public information and is available to everyone. (http://www.facebook.com/page_guidelines.php accessed 3/9/2012).

[198]To report a deceased user’s death, see http://www.facebook.com/help/contact.php?show_form=deceased (accessed 3/9/2012).

[199]Note: A user should also inform this trusted person that they would be required to accept the respective eContract for those accounts that permit a third-party who has agreed to their terms of service to access the account.

[200]Under Part II of the UPC, a surviving spouse is entitled to an “Elective Share” in order to prevent the spouse from being completely disinherited.  The amount guaranteed to the surviving spouse is determined by the value of the decedent’s augmented estate.  Under §2-205, the value of the decedent’s “augmented estate” includes the value of “property” that pass to persons other than a surviving spouse.  According to §2-201, “property value” includes the value of those assets that pass under a beneficiary designation or outside the decedent’s will.  If the digital asset has no value, it would not be included as “property” within the augmented estate.

[201]UPC §3-104.

[202]UPC §3-703(b).

[203]UPC §§3-614 through 3-618.

[204]See, note 62, supra.  Additionally, it may make sense to include a statement under the Gramm-Leech-Bliley Act, 15 U.S.C.S. §6801, et seq.; Molly Wilkens, Privacy and Security During Life, Access After Death: Are They Mutually Exclusive?, 62 Hastings L.J. 1037 (2011).

[205]See, www.legacylocker.com, www.assetlock.net, www.chroniclesoflife.com, www.deceasedaccount.com, www.e-z-safe.com, www.entrustet.com, www.estateplusplus.com, www.executorsresource.com, www.lifeensured.com, www.mywebwill.com, www.myinternetdata.com, www.securesafe.com,

This too, however, has limitations because the terms of service may prevent access or consider the engagement of the third-party administrator a prohibited assignment by the account user.

[206]The Domain-based Authentication, Reporting and Conformance (“DMARC”) was founded by organizations to prevent and protect email users from “spam” messages by “using the well-known SPF and DKIM mechanisms. This means that senders will experience consistent authentication results for their messages at AOL, Gmail, Hotmail, Yahoo! and any other email receiver implementing DMARC. We hope this will encourage senders to more broadly authenticate their outbound email which can make email a more reliable way to communicate.” http://www.dmarc.org/ (accessed 2/11/2012).

[207]See, LinkedIn Verification of Death form at https://help.linkedin.com/app/answers/detail/a_id/2842/kw/death%20of%20a%20member (accessed 3/1/2012).

[208] See, U.S. Government Printing Office (“GPO”) Federal Digital System. (www.gpo.gov/fdsysinfo/aboutfdsys.htm accessed 2/21/2012)

[209]In deciding a federal estate tax case, the Supreme Court held that “state law creates legal interests and rights. The federal revenue acts designate what interests or rights, so created, shall be taxed.” Morgan v. Commissioner, 309 U.S. 78, 80 (1940).

[210]Note the differences in the type of authority granted and which digital assets are covered in Conn. Gen. Stat. §45a-334a, Idaho Code §§15-3-715 and 15-5-424, Ind. Code §29-1-13-1.1, Okla. Stat. tit. 58, §269 and R.I. Gen. Laws §33-27-3.

[211]Amazon and eBay state sales tax collection headaches that led to The Marketplace Fairness Act, S.1832, 112th Congress 1st Session (2011).

A contrary opinion on whether changes should be left to state or federal legislators can be found at Darrow and Ferrera, at 317-318, note 1 supra.

[212]Zippo Manufacturing Company v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (E.D. Penn. 1997); Lakin v. Prudential Securities, Inc., 348 F.3d 704 (8th Cir. 2003); Trintec Industries Inc. v. Pedre Promotional Products Inc., 395 F.3d 1275 (Fed.Cir. 2005).

[213]See, Gramm-Leech-Bliley, 15 U.S.C.S. §6801, et seq. Health Insurance Portability and Accessibility Act, 42 U.S.C.S. §1320d, et seq., Fair Credit Reporting Act, 15 U.S.C.S. §1681, et seq., Stored Communications Act, 18 U.S.C.S. §2701, et seq., and Family Education Rights Privacy Act, 20 U.S.C.S. §1232g.

[214]Contents of communications may not be disclosed under the Stored Communications Act pursuant to a civil subpoena. O’Grady v. Superior Court, 139 Cal.App.4th 1423, 1448 (Cal.App. 2006); Federal Trade Commission v. Netscape Communications Corp., 196 F.R.D. 559, 561 (N.D. Cal. 2000) (Congress could have specifically included discovery subpoenas in the statute had it meant to); In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606 (E.D. Va. 2008) (subpoena not enforced because it was not “consistent with the plain language of the Privacy Act because the exceptions enumerated in §2702(b) do not include civil discovery subpoenas.”); J.T. Shannon Lumber Co., Inc. v. Gilco Lumber Inc., 2008 WL 4755370 (N.D. Miss. 2008) (no exception to the for civil discovery); Viacom Intern. Inc. v. Youtube Inc., 253 F.R.D. 256 (S.D. N.Y. 2008) (§2702 does not have an exception for the disclosure of communications pursuant to civil discovery requests); Thayer v. Chiczewski, 2009 WL 2957317 (N.D. Ill. 2009) (third parties cannot be compelled to disclose electronic communications pursuant to a civil subpoena).

Note: Prohibiting access to a digital asset under civil subpoena nullifies an effective tool deceased users’ families had available to gain access to the contents of accounts.

[215]18 U.S.C.S. §2701(c)(1)-(3).

[216]Controversial bills to expand the obligations of service providers were presented in the House and Senate, but neither proceeded to a vote before the full Congress.  See, Protect IP Act (“PIPA”), S.968 112th Cong. 1st Sess. (2011) and Stop Online Piracy Act (“SOPA”), H.R.3261 112th Cong. 1st Sess. (2011).

[217]17 U.S.C.S. §512.

[218]P.L. 105-304, §502 (1998); 17 U.S.C.S. §1330.  See, Bonito Boats, Inc. v. Thunder Crafts Boats, Inc., 489 U.S. 141 (1989) (decision prompted Congress to adopt Chapter 13).

[219]17 U.S.C.S. §1320(a) which provide that the protected rights of an owner under chapter 13 vest in the designer, a legal representative of a deceased or incapacitated owner, and (b) these rights are transferable.

Vessel hull designer’s copyrights are limited by any protections conveyed upon designers under patent, trademark and common law. 17 U.S.C.S. §§1329 and 1330.

[220]See, 17 U.S.C.S. §204(a) regarding the transferability of a copyright.

[221]17 U.S.C.S. §106A.

[222]17 U.S.C.S. §106A(a).

[223]Cal. Civ. Code. §987; Mass. Gen. Laws ch. 231, §85S; NY CLS Art & Cult Affr §14.03.

[224]17 U.S.C.S. §106A(d)(1).

[225]17 U.S.C.S. §106(a)(2).

[226]17 U.S.C.S. §106A(a) Rights of attribution and integrity. Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art—(1) shall have the right. . .

[227]Quality King Distributors, Inc. v. L’anza Research Int’l, 523 U.S. 135 (1998) at fn. 21, quoting 2 P. Goldstein, Copyright §5.12, p. 5:225 (2nd Ed. 1996) (§106A encompasses aspects of the moral rights guaranteed by Article 6bis of the Berne Convention, “but effectively gives these rights a narrow subject matter and scope”).

[228]17 U.S.C.S. §201(d)(1) allowing the transfer of property “by will or. . .intestate succession.”

[229]15 U.S.C.S. §45.   See, FTC v. Verity International, Ltd., 443 F.3d 48 (2nd Cir. 2006) (consumer fraud action against online billing company for misleading users about charges from adult-website).

[230]15 U.S.C.S. §105(b).

[231]Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, P.L. 108-107 (2003).

[232]15 U.S.C.S. §7706(a).  See, 16 C.F.R. §316 for the FTC’s final rules under the CAN-SPAM Act.

[233]15 U.S.C.S. §§6501-6506.

[234]15 U.S.C.S. §§41-58.  See, National Federation of the Blind v. FTC, 420 F.3d 331 (4th Cir. 2005), cert. den. 547 U.S. 1128 (2006) (FTC’s authority to make telemarketing rules upheld);

[235]In the Matter of Google Inc., FTC File No. 102 3136 (2011). (FTC action against Google for violating privacy rights of its users with the release of Google “Buzz” platform) http://www.ftc.gov/os/caselist/1023136/index.shtm; In the Matter of Facebook Inc., FTC File No. 092 3184 (2009). (FTC action against Facebook for violating consumer’s privacy rights by deceptively notifying users that their information was safeguarded). http://www.ftc.gov/os/caselist/0923184/index.shtm

[236]1994 Pub. Law No. 103-414.

[237]Federal Communications Commission Miscellaneous Rules Relating to Common Carriers, 47 C.F.R. §§64.2500-64.2502. See, Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010) (FCC did not have the ancillary authority to regulate a service provider’s management practices under the Communications Act, 47 U.S.C.S. §153).

[238]47 U.S.C.S. §1001–

(4) The term “electronic messaging services” means software-based services that enable the sharing of data, images, sound, writing, or other information among computing devices controlled by the senders or recipients of messages.

(6) The term “information services”—

(A) means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications; and

(B) includes—

(i) a service that permits a customer to retrieve stored information from, or file information for storage in, information storage facilities;

(ii) electronic publishing; and

(iii) electronic messaging services.

[239]Members of Congress have introduced a bill to limit the authority of the FCC. See, The Internet Freedom Act, H.R. 96 112th Congress 1st Session (2011-2012), a bill that seeks to prohibit the FCC from further regulating the Internet, other than regulations established under CALEA.

[240]See, note 215, supra.

[241]18 U.S.C.S. §2703(e).

[242]17 U.S.C.S. §512.

[243]47 U.S.C.S. §230(c)(1).

[244]This portion of the article is specifically directed to changes under the UPC.  Due to the fact that the UPC has not been adopted by all 50 states, the recommendations made by the National Commissioners of Uniform Laws to state legislators remain influential and are considered by all state legislators in their legislative processes.

[245]See, notes 113-115, supra.

[246]See, Conn. Gen. Stat. §45a-334a, Idaho Code §§15-3-715 and 15-5-424, Ind. Code §29-1-13-1.1, Okla. Stat. tit. 58, §269 and R.I. Gen. Laws §33-27-3.

[247] See, Idaho Code §15-5-424.

[248]Uniform Probate Code (2009), National Conference on Uniform State Laws, Chicago, Illinois. http://www.nccusl.org/Act.aspx?title=Probate%20Code

[249]UPC §3-1201.Planning Your Digital Estate:

Is your legacy lost in cyberspace?

Daniel S. Hoops, J.D., LL.M.*

 

I.          Introduction

II.        Planning the Disposition of an Estate

A.        What are digital assets?

B.        Administering an Estate

III.       Existing Laws neither Preserve nor Encourage Preservation of Digital Assets

A.        Generally

B.        Property Rights

C.        Contractual Rights

D.        Uniform Probate Code (“UPC”)

E.         Federal Transfer Taxes

IV.       Estate Planning under Service Provider Terms of Service

A.        Rights Effected by Terms of Service

B.        Rights of Deceased Users

V.        Estate Planning for Digital Legacies under Current Law

A.        Prepare a Separate Writing Related to Digital Assets

B.        Appointment of a Digital Administrator

VI.       Proposed Standardization of Internet Terms of Service

A.        Overview

B.        Recommended Terms of Service

VII.      Proposed Changes to United States Law to Manage a Digital Legacy

A.        Federal Law

B.        State Law

VIII.    Conclusion

 

 

I.          INTRODUCTION

 

After death, who controls the digital legacy for users of service providers like Facebook and Twitter?

 

This simple question prompted the research contained in this article and will hopefully continue the conversation[1] about whether laws should be updated for email, social media and blog users to advance plan their digital estates.

 

Devoid of any options under current law, people are now left with just one estate planning option: Give someone their account passwords.

 

This limitation is not optimal considering that few people think to give someone their passwords, and identity theft could easily leave a deceased user’s accounts vulnerable. It further is not a viable option for those users who become incapacitated.

 

Unfortunately, present law does little to guide users of free Internet services in planning much of anything related to their digital assets. Unless legislators adopt new guidelines or service providers agree to a uniform method to control digital assets after death, digital legacies are essentially lost in cyberspace.

 

This article examines present law and several of the popular free service providers’ terms of service in relation to planning a person’s digital legacy in the event of death or incapacity.  Omitted from this discussion are the estate planning issues that might affect children,[2] users of pay-for-access social networks,[3] Internet gaming,[4] privately hosted email and blogs, and business ownership interests that include digital assets.[5]

 

II.        PLANNING THE DISPOSITION OF AN ESTATE

 

Every day there are hundreds of millions of users online making eCommerce thrive.[6]  Cyberspace is the glue that connects the entire world’s population for business, pleasure, and even political revolutions. People use the Internet to upload and transmit billions of files with digital content through various email providers, social networks, and blogging hosts.

 

Transmissions of digital content create virtual maps of users’ daily lives that grow each time a user accesses an Internet service provider’s network.  By December 2011, Facebook had 854 million users[7] and an infrastructure to handle over 120 billion messages per month;[8] Flickr surpassed 6 billion images hosted (with 3,000 images uploaded ever minute);[9] Twitter users transmitted 200 million messages each day;[10] 48 hours of videos were posted on YouTube every minute;[11] Yahoo claimed to have 302 million email users;[12] and 4.2 billion professionally-oriented searches of LinkedIn profiles were conducted.[13]

 

Today’s Internet users have made transmitting content to other users a way of life. Online socializing is so popular that one study believes Internet users’ social relations have and will continue to improve through the year 2020.[14]  Unless a user takes active steps to erase content they uploaded, or the service provider removes the content from its server, user data (and the many years of effort creating it) can sit on a server for as long as the service provider allows.

 

A.        What are Digital Assets?

 

For purposes of this article, a digital asset is an account established by an individual through a free Internet service.  Service providers[15] offer individuals the use of free electronic mail, social networking and blogging platforms as an incentive to access their sites.[16]  Service providers that offer these services for free are interested in having large numbers of users, as the more populated the site the more attractive it is for online advertisers.[17]

 

The federal law currently recognizes some digital assets as quasi-property rights under the U.S. Criminal Code, but beyond sanctioning unauthorized releases of stored digital content, the law is silent as far as conferring property status for these assets.[18]  The federal law also recognizes the popularity and importance of Internet service providers in copyright piracy matters,[19] but individual users (or the content in their accounts) are otherwise virtually ignored.

 

The following are examples of digital assets that are used by billions of people to transmit, share, and store data through their everyday web activities. Significantly, there exist few laws that definitively recognize or protect them. The Congress and federal agencies appear more focused on consumer privacy issues with service providers than with consumer property rights when it comes to digital assets.[20]

 

i.          Email

 

Behind Internet search, electronic mail is the second most popular activity by on-line users.[21]

 

Email is the preferred method of direct communication in the United States as handwritten letters and notes transmitted by the U.S. Postal Service slowly fade from mainstream culture.[22]  The declining use in the postal service can also be attributed to society becoming more paperless as people file their income taxes, pay their bills, shop and bank online.  A user simply needs an email address in order to receive confirmation of any electronic transaction.

 

Users of email[23] quickly embraced its advantages over phone calls, faxes and next-day delivery services because the services were free and users could save, archive, and retrieve email with relative ease.  Today’s email users are very dependent on the efficiencies service providers offer, especially the ability to store transmitted correspondences and attached files.  Some of the most popular email service providers are Google’s Gmail,[24] Yahoo,[25] AOL[26] and Microsoft’s Hotmail.[27]

 

Because email may be used as a way to search for someone in cyberspace, some users create multiple email accounts to avoid being identified as a member of a particular website or in an effort to manage their online reputation.[28]  For a deceased person, the content of their email might shed some insight into who they were as a person, could disclose family secrets or horrors, or be nothing more than harmless writings the owner never deleted.  A person’s email may also be something as simple as communications a family might want to access as a reminder of their loved one.

 

The volume of email a person sends during a lifetime might, if printed, fill a warehouse.  Before the digital age, documents, correspondences and messages between people were generally saved in desks, dressers, cabinets or some other secure, but easy to find, location.  After the writer’s death, these documents could be retrieved and read by surviving family members.

 

Aside from being a cyber repository for communication, email may have a more practical consequence if a person were to die or become incapacitated.  A person’s email account might contain important information or data (such as online invoices and bills, identifying information such as social security number, or other time-sensitive correspondences) that require immediate attention.[29]  Every consumer transaction in eCommerce requires two things: the user’s payment information, and email address. In the event of death or incapacity, if the email account were not readily accessible, there could be some unknown liability against the user, the user’s estate or the fiduciary of the estate.[30]

 

Email is not easy to access like a box of personal correspondence or a decedent’s mail.  Without access to the email account, representatives of decedent’s estates will be required to send blanket subpoenas or commence litigation to simply receive the most basic information about their decedents.[31]

 

The contents contained in an email account are very important for post-mortem administrations, and without the user’s account name and password, these contents can be lost forever.[32]

 

ii.         Internet Social Networks

 

Online social networking sites are extremely popular with users of the Internet today.[33]  Social networks are designed as communities (e.g., a place to meet and share content with select friends) or based on common interests (e.g., matchmaking, music, picture or video sharing, business networking). Web users may also be inclined to have personal profiles registered with several online social networks.  Some of the most popular free social networks are Facebook, Myspace, Google+ and LinkedIn.

 

Internet social network providers allow a user to create a personal profile, manage the digital content uploaded to that profile, add other users to their network, and communicate with specific users or their entire network of friends. Data files, email and private discussions are regularly transmitted through a person’s social network profile.

 

Profiles and accounts of those who participate in social networking contain tremendous personal value.  All of the content uploaded and stored in a profile account is a reflection upon the creator and becomes part of their digital legacy.  These profiles can remain hosted in cyberspace if a user should die or become incapacitated.

 

iii.        Blogs

 

Web logs (or blogs) might be defined as a person’s online soapbox, where almost anything that interests the user can be discussed or uploaded.  Some of the digital records that can be posted include videos or photos, personal musings and criticisms, and public exchanges with other bloggers. Blogs are popular with readers who may subscribe as a follower to a blogger and receive notification when new content is posted by the blogger.[34] Some of the popular providers of free blogging are Twitter, Youtube, Flickr, blogger.com, and WordPress.

 

Most blogs are intended for public viewing and bloggers encourage commentary or re-publication of the content they post.  In addition, readers can incorporate one blogger’s content to a social network profile or blog maintained by a different service provider.

 

Due to the advertising restrictions placed on bloggers by the free service providers, many in the blogosphere have elected to take control of their blogs and pay for web hosting services themselves, such as through the services of GoDaddy.com.  By taking complete ownership of their blog, these bloggers are not confined to as many of the restrictions of the free service providers’ terms of service.[35]  For example, individuals who own or self-host their blogs can transfer their blogs at death (as with any other non-digital assets) however they decide.[36]

 

The many forms of communication and published commentary that become the blog contents will remain public after a person’s death or incapacity. Whether this content should be removed or remain on the Internet in perpetuity is a decision that only a blogger who is alive and competent can make.

 

B.        Administering a Digital Estate

 

Applying the present (but limited) body of law to estate planning and the administration of digital assets is a frustrating endeavor.  One challenge is that it is unclear what requires estate planning to begin with.  A more troubling challenge is how a person can effectuate the disposition of something that may not even be defined as an asset under present law?

 

i.          Generally

 

Whether a person is incompetent or deceased, managing the assets of an estate comprised of real and tangible personal property is relatively straightforward: these are readily identifiable properties and the law provides sufficient guidance in how these assets should be handled.  With digital assets, planning is not so straightforward.

 

Every state has a procedure that allows for the administration of a deceased person’s assets by an appointed representative of their estate.[37]  There are similar statutes that govern the management of assets for an incapacitated person.[38] The third-party representatives who handle these administrations are called fiduciaries.[39]  These appointed fiduciaries must adhere to strict duties of loyalty, trust and diligence to their charges (i.e., the decedent’s heirs or the incapacitated person) in how the assets are managed under their care.[40]

 

It bears consideration whether digital assets have any value that would require an administration by a fiduciary.  Alternatively, does a fiduciary have the right to access another person’s email, social network or blog account to handle an estate or conservatorship administration?  Perhaps the ultimate administration question is for users:  do they want their digital assets continued, accessed or disclosed to anyone?

 

The personal representative is the fiduciary appointed by a probate court and is given the ultimate authority to transfer assets from the decedent’s name to designated heirs.[41]  Decisions and instructions for managing a decedent’s estate are provided in the person’s last will and testament or the particular state’s probate statute.[42]

 

A conservator is the fiduciary appointed by a probate court to preserve the assets of an incapacitated person during their incapacity.[43]  A power of attorney is a fiduciary appointed by a person, not the probate court, to handle that person’s financial transactions during their incapacity.[44]  If a person has a designated power of attorney, a conservatorship proceeding is usually unnecessary as the power of attorney can handle most of the same tasks without judicial oversight.[45]

 

The principal objective of an estate administration is to dispose of an individual’s assets, file estate and income tax returns on behalf of the decedent, and satisfy any outstanding liabilities in an orderly manner; wills, trusts, beneficiary designations and assignments are some of the instruments used to accomplish these tasks.  For an incapacitated person, the objective is to preserve the person’s estate during the period of incapacity; powers of attorney, trusts and co-ownership of assets are methods used to manage the incapacitated person’s estate.

 

Estate planning involves making arrangements for most intangible assets, such as investment and retirement accounts, bank accounts, life insurance and annuity contracts. Owners of these assets can designate specific beneficiaries, add a co-owner to an account, reserve a life estate for themselves, or assign an interest in the asset to a third-party.

These designations are usually covered by the owner’s account or contract and are governed by an extensive body of state and federal law.  Subject to the web host’s terms of service, similar arrangements can be made by individuals who own their blogs and websites.

 

Digital assets are not the same as a 401k plan or life insurance policy, they are akin to family heirlooms or other sentimental objects that do not require extensive planning. However, the ultimate disposition could have substantial personal or moral value to the creator of the digital asset, or to the surviving family members.

 

Unfortunately, only Connecticut, Idaho, Indiana, Oklahoma and Rhode Island recognize email as something a personal representative has the authority to administer.[46] Of these five states, only Idaho grants conservators the authority to access an email account.[47]

 

If a person were to realize the extent of the digital content their accounts held, it might be a pause for concern. . . what if their digital content disappeared? What if their account were read by family members?

ii.         Life Leases

 

In a non-digital world, the type of relationship created with service providers is called a life license or life estate.[48]  All rights and usage to the property subject to the lease revert to the licensor or remainderman upon the lessee’s death.[49]  For example, imagine a rancher who held a life lease to property.  During the rancher’s life, the animals could be bred, raised, sold, or moved to other property as the rancher decided.  When the rancher died, his or her rights to use the property would cease, but ownership of the herd would be transferred to the rancher’s surviving family members not to the owner of the remainder interest.

 

In a digital world, the concept of a life license means that ownership of the content may belong to the user and under the user’s control during life.  The license allows the user to freely upload or transfer content through the site and remove that content during the user’s life.[50]  In order to manage and remove content from a site, however, users must also be alive and capable of doing so.[51]

 

Essentially, all of the rights a user might have under their license are eliminated at death because the ability to remove or access the users content is assigned to the service provider. If a user becomes incapacitated, these rights might be suspended or terminated depending upon how long the user is incapacitated.[52]  As a result, Google, Facebook, Myspace, LinkedIn and Twitter could become their users’ remaindermen if their terms of service so provided.[53]

 

It is unclear whether there is recourse, or a post-mortem right, for the user’s estate to take control of the digital content under these licenses.[54]  In general, a person’s post-mortem rights are limited under the common law;[55] where actions for physical injuries or wrongful death, completion of a contract and appropriation of an individual’s name after-death may be allowed,[56] actions for invasion of privacy and defamation end at a person’s death.[57]

 

III.       EXISTING LAWS NEITHER PRESERVE NOR ENCOURAGE PRESERVATION OF DIGITAL ASSETS

 

A.        Generally

 

In the United States, Internet activities can be governed by several sources of law, including statutes, treaties, administrative regulations and traditional common law. Applying these existing laws to cyberspace is complicated, especially with jurisdiction and choice of law issues that often arise.[58]

 

The legal issues in this paper, however, are relatively simple in relation to cyberlaw.[59]  Whether it is possible to plan a person’s digital estate is answered by looking to the laws that govern property and contracts: (i) is an online account, or the content in an Internet service provider’s account, recognized as transferable property, and, if so, (ii) to what extent any property rights can supercede the obligations of a contract signed by the property owner during life.  For estate planning purposes, the high-tech laws that govern eContracts and digital intangible properties need to be reviewed rather than the statute of frauds and other laws governing possessory interests and chattels.

 

B.        Property Rights

 

Digital content or property can be anything (e.g., letters, memos, thoughts, ideas, expressions, videos, songs, photos, communications, musings and gobbledygook) transmitted and stored in an online environment.  But is this content so substantial that it should be given protection under the law as a property right? This question leads back to the question of what needs to be protected.

 

            Is the digital asset the content created by the user or is it the account that stores the content?

 

i.          Intangible Property

 

Whether a digital asset is or could be transferable as an intangible property is unclear under federal law.  Some of the rights a person might have in their digital asset are protected against unauthorized disclosures of communications stored by an electronic communications service[60] under the Stored Communications Act (“SCA”);[61] the Copyright Act may govern other rights.[62]

 

While the SCA does recognize a right with regard to “stored electronic communications,” such as stored email, it goes no further than that.  The SCA creates a privacy right that can be waived by individual users.  In other words, it is not a property right that would cover all digital assets.

 

For example, content posted on a blog or social network would not be protected under the SCA because the content is shared with the public;[63] but email and private chats between users would be covered communications.  The SCA, therefore, falls short in defining most digital assets because the purpose of social networks and blogs is to publicly disseminate user content.

 

Property considerations for digital assets are better suited under the Copyright Act for purposes of this discussion. Copyrights and the Internet have become closely connected; especially as service provider networks are frequently used as the platform for displaying and sharing digital content.[64]

 

The Copyright Act protects works of authorship that are “original” and which can be “perceived, reproduced or otherwise communicated” to others.[65]  An unregistered, original work may still be considered an “original work,” but authors have no right to prosecute infringements of “common law copyrights.”[66]  In order to enforce a copyright in federal court, the author or owner must register their work with the U.S. Copyright Office.[67]

 

The challenge for owners of digital assets is applying the Copyright Act’s standards, (i.e., originality of their content, compilations, and publication) to their habits as users of service providers.  These standards will prevent most content posted on social networks and blogs from protection under the Copyright Act.

 

A single blog entry, such as a person’s video diary or daily musing could be protected property if the content were original. For most bloggers, registering their original works with the U.S. Copyright Office is either something they do not consider or is not cost effective as they regularly and freely post new content.[68]  Once their unregistered content is posted (or published), it becomes part of the public domain.[69]  This may be discouraging to bloggers, but they are not prohibited from registering their content (or their entire blog as a compilation) under the Copyright Act before publishing it.[70]

 

A social network user posting a “mood” or “hello” on a profile is not the type of work for which copyright protection is intended.[71] Many of these are simply observations or commentary, not creative works of authorship.[72]

 

Likewise, an email or email account is not a copyrightable work.[73]  A poem transmitted through email, however, could be considered an original work by the author.[74]

 

The transmission of data poses a problem for the administration of a digital asset. Consider a writer who sent a poem through personal email.  The content is still covered by the Copyright Act as an original, unregistered and unpublished work; but who controls the content if the writer is deceased?  The unknown recipient of the email who now possesses the content?  If a fiduciary were unable to access the account to know of its existence in the first place, the writer’s estate could suffer damages because it cannot even attempt to register the work under the Copyright Act.[75]

 

For digital assets, the method of transmitting or storing a work (i.e., the account) is not the protected property under copyright law, rather it the method used to engage in infringements.[76]  For example, the services offered by YouTube and Flickr are simply platforms for users to share video or photographic content to other users.  Users surely post unauthorized copyrighted material (both knowingly and unknowingly) considering the number of files uploaded every day. The Copyright Act imposes a duty upon service providers to remove any content that infringes upon the copyright of the owner upon receiving notice of the infringement.[77]

 

Publication of an unregistered work will result in a waiver of whatever rights the owner had in the work under the fair use doctrine; [78] this may be the case if the content is shared and re-transmitted by the user’s followers.[79]  But transmitting or uploading content to the Internet would probably be considered a publication of the content, rather than a performance by the author.[80]  The Copyright Act allows for broadcasts or displays as protected public performances, irrespective of the medium,[81] so this question could be open to further debate for blog posts.

 

Considering the enormous amount of content uploaded through service providers every day, the registration process and alleged infringements would shut down the entire copyright system.  Extending full copyright protection to individual email accounts, social network profiles and blogs is also contrary to the spirit of copyright protection.[82]

 

As a result, planning a digital legacy begins and ends not with the actual content, as a property right, but with the parties who control the storage and method of transmitting the content.[83]

 

C.        Contractual Rights

 

In order to create a digital asset, a user must establish a relationship with an Internet service provider.  This is accomplished by logging onto a provider’s website and agreeing to the provider’s terms of service; in other words, by clicking accept, a contract is formed between the user and the service provider.

 

i.          eContracts

 

Under the common law, an agreement is valid upon its creation and the express terms and conditions will govern the parties to that agreement. This is also true with online contracts.[84]  Absent fraud in the formation, courts are reluctant to deviate from agreed terms in contracts, even if those terms are considered one-sided or unfair.[85] The terms of service governing digital assets are enforceable contracts between the site and user, just as any other signed contract.[86]

 

State and federal laws govern the validity of electronic records and signatures for eCommerce transactions, including the contracts users sign to create digital assets.[87]  When it adopted the Electronic Signatures in Global and National Commerce Act (“E-Sign”), Congress was “[c]areful to preserve the underlying consumer protection laws governing consumers’ rights to receive certain information in writing,” so it included special requirements on businesses.[88] While Congress may have had consumers in mind in 2001, E-Sign may need to be revisited as consumers’ privacy rights seem to be a lesser concern to service providers.[89]

 

Although the federal E-Sign preempts state laws that govern contracts, it gives way to the Uniform Electronic Transactions Act (“UETA”) for electronic contracts signed in those states that have adopted the UETA.[90]  What this means is that state law will control the rights of the parties to an electronic contract agreed to by a resident of that state. There are many transactions covered by UETA, including purely state matters under the Uniform Probate Code.[91]

 

Some legal scholars have criticized website service providers who offer unfair and adhesive terms of service to web users,[92] such as the choice of forum or state law for disputes between the parties.[93]  Courts have and will continue to side with website service providers under a theory that users do not have to accept the terms of service (i.e., clicking I decline) or access the site.[94]

 

Applying the courts favorable view of eContracts, there is an estate planning roadblock when users accept the terms of service offered by free email, blogging and social network providers. What the terms of service may be in January 2012 could change by October 2012.

 

ii.         Terms of Service – Generally

 

The problem with planning a digital legacy is that the popular service providers offer terms of service that can be interpreted in multiple ways, or simply ignore a person’s digital legacy.

 

While most service providers do not claim ownership of their users’ original content, they do maintain tremendous, if perhaps inadvertent, control over users’ stored content.[95]  For users who simply want to have email or be part of a large digital or online community, understanding their rights under terms of service can be confusing,[96] but understanding the legal effect of accepting of those terms of service may not be fully appreciated.

 

An especially interesting term of service is one where the provider retains a unilateral right to change the eContract without the user having any right to negotiate the proposed change.[97]  When a service provider makes a unilateral change to the terms of service (or an amendment to the previously accepted contract), a single issue is raised: whether the service provider gave the user adequate notice of that change.[98]  If adequate notice of the changed term is given, users who continue to access the site will be doing so subject to the amendment to their original agreement with the service provider.[99]

 

An unusual characteristic of Facebook’s service is that it gives its users an opportunity to comment, object and vote on changes to its terms of service.[100]  This allows its users to understand and consider how those changes may affect their use of the site and the content they transmit through Facebook.

 

Microsoft’s service agreement (which covers its Hotmail and Messenger services) provides that any changes to its terms of service can be made without giving notice of the change to users.[101]  In addition, Microsoft user services should be unaware of another term of service that allows Microsoft to terminate its services without notice to users.[102]

 

The other major service providers simply reserve the important right to modify or change their terms of service at any time.[103]  Google’s January 24, 2012 announcement that its Universal terms of service would be changed, effective March 1, 2012, offered users an opportunity to ask questions or close their accounts, but did not give its users an opportunity to negotiate (or object to) the new terms of service.[104]

 

Another important term that users may accept when they create a digital asset is the waiver of their right to assign the account.  This is not an uncommon condition in most contracts, but when a user waives this right, it can have serious consequences to their estate plan.  How a service provider’s terms of service can have affect a user’s estate plan is discussed in IV., infra.

 

D.        Uniform Probate Code (“UPC”)

 

While eighteen states have officially adopted the UPC,[105] every state has law that governs decedent’s estates and incapacitated individuals in a similar manner to the UPC.[106]  The purpose of a probate law is to provide administrative mechanisms to manage the estates of deceased and incapacitated persons.

 

The range of powers granted by a probate court to a personal representative is broad.  They include the authority to settle claims, perform under contracts, file tax returns, and transfer assets from the estate to the beneficiaries and other third parties.[107] A conservator and power of attorney’s authority is to “preserve” an incapacitated person’s assets until the person regains capacity.  The UPC gives fiduciaries the lawful right to stand in the shoes of the (deceased or incapacitated) person to perform under existing contracts and to deal with that person’s property interests.[108]

 

When terms of service prohibit the assignment or access to a service provider’s account, the fiduciary is bound by the incapacitated or deceased person’s prior decision to enter into that contract.[109]  As a result, if the account is not accessible by a third-party under the terms of service, the fiduciary is, therefore, bound by that term.[110]

 

For example, in accordance with its terms of service in December 2011, Microsoft recently adopted a thorough procedure for users of its services.[111]  This procedure is designed to provide the following assistance:

How to request data from a deceased or incapacitated user’s account?

Microsoft Next of Kin Process: What to do in the event of the death or incapacitation of a loved one with a Hotmail account.

If you have lost a family member, or have a family member who has become medically incapacitated, the following information will help you contact Microsoft regarding their Windows Live Hotmail or MSN Hotmail account. [112]

Whether this procedure can be relied upon as a continuing right under the terms of Microsoft’s service depends on the remaining terms of service between Microsoft and the user.  Nevertheless, this procedure was designed to preserve the digital legacies of Microsoft users.

 

Although the 2008 amendments to the UPC included an updated definition for the terms record and signature to incorporate electronic signatures and electronic records,[113] the drafters did not consider digital assets in this latest version of the UPC.  This leaves the digital assets of a decedent in limbo and the personal representative has no authority to handle the assets in the manner that a deceased person may have intended.

 

As of March 2012, Connecticut and Rhode Island recognize a personal representative’s authority to access electronic mail.[114] The States of Indiana and Oklahoma confer authority upon a personal representative to access all of the digital assets of a decedent.[115]  The State of Idaho is the only state that confers authority upon both conservators and personal representatives to access a user’s digital assets.[116]

 

If digital assets were recognized as property owned by incapacitated persons and decedents’ estates under state and federal law, fiduciaries would have the authority to deal with them, as with all other assets under current law. Because a decedent’s digital rights cannot be uniformly transferred to heirs under present probate law, a uniform procedure allowing a user’s rights to be protected during incapacity and after death is necessary.[117]

 

E.         Federal Transfer Taxes

 

An estate planning discussion related to users’ rights in their digital assets would be incomplete without analyzing the estate, gift and generation-skipping transfer tax consequences to the user.

 

The business model used by many service providers makes tax planning for the type of digital assets discussed in this paper relatively easy.  Essentially, service providers’ terms of service allow users to exclude digital assets from the federal transfer taxes.[118]

 

The term of service that prohibits or restricts transfers or assignments of accounts can be reasonably interpreted to forbid lifetime and testamentary transfers of user accounts.[119] As a result, if a digital asset cannot be assigned or transferred by the user, it cannot be taxable under the federal estate, gift and generation-skipping transfer taxes.[120]

 

Assuming a digital asset could be transferred or assigned at death, the term of service that expressly prohibit users profiting from their accounts would render most digital assets worthless.  For example, if an asset generated income, such as a self-hosted blog that received advertising income, the transfer or assignment of that blog during the owner’s life, or at death, would be considered a taxable transfer.[121]  Because free Internet social networks and blog sites strictly forbid commercial exploitation of their networks, the accounts most likely have no transferable value.[122]

An interesting digital asset to analyze under the federal estate tax is the email account. The monetary value of most personal email accounts is probably little to none, likely having the same value as a deceased relative’s letters and family documents.  But, the contents of a celebrity’s account could have a tremendous amount of value under the estate tax.

 

For example, if J.D. Salinger had a Yahoo account, imagine the substantial value its contents would have considering his decades of silence since publishing Catcher in the Rye.[123] The simple fact that Yahoo’s terms of service would terminate Salinger’s account upon his death would mean that the digital asset would be excluded from his gross estate.[124]  But if the J.D. Salinger account were registered through Microsoft’s Hotmail, whose terms of service may allow a third-party to access the account’s contents, the value of the contents would be includible in his gross estate.[125]

 

The idea of this analysis is not to argue for the sudden inclusion of digital assets in the gross estate. Rather the lack of a uniform method to deal with digital assets after death can be taken to an absurd level.  Imagine if a person made the decision to join one social network over another based on the estate tax consequences, or how the United States Tax Court interpreted Microsoft’s terms of service[126] versus Yahoo’s terms of service.[127]

 

If the changes recommended in this article were made by service providers or legislators,[128] email accounts would be assets subject to taxation under the estate, gift and generation-skipping transfer taxes.  Nevertheless, because the value of most users’ accounts is probably nominal, transfer taxes should not be a substantial concern for planning a digital estate.

 

IV.       Estate Planning under Service Provider Terms of Service.

 

Terms of service can have various effects on an individual’s estate plan.  By no means should a person make a decision to join or discontinue an account with any particular service provider, based solely on their terms of service, because these terms of service can be modified at any time upon proper notice.[129]

 

As a result, the following analysis of the current terms of service and planning opportunities offered by some of the popular service providers is provided for the sole purpose of demonstrating the need for a uniform method to plan a person’s estate. Readers should not rely upon the following for estate planning purposes.

 

A.        Rights Affected by Terms of Service.

 

There are four terms of service that all users should understand if they are concerned with their digital legacy: (i) ownership of their content, (ii) storage of their content, (iii) termination of the account, and (iv) third-party access to their content.   These four terms play an important role in determining what rights an account user really has in the event of death or incapacity.

 

For example, if an individual were incapacitated, their power of attorney or conservator could be prevented from “preserving” the account content depending upon the particular provider’s terms of service; but another provider’s terms of service might not impose the same restriction.

 

i.          Ownership of Account Content

 

While most users might think their stored digital content is their own property, that is not the case if the content can be deleted or the account terminated due to inactivity (relevant to this paper, if the user died and the account has not been accessed for a period of time).

 

In other words, under the service providers’ terms of service, how far does an ownership right really go? Does ownership mean the underlying pre-uploaded or pre-transmitted content, the content (as stored) in the account, or the “registered account” itself?

 

America Online[130] and Microsoft[131] do not claim ownership over user content transmitted through their services.  These sites simply provide a platform for users to transfer their data.  Microsoft’s “Next of Kin” procedure does preserve the contents of a deceased or incapacitated user’s  account from the “Help” page, but this too could be contradicted or preempted by other terms of service.[132]

 

The terms of service for Yahoo,[133] Myspace,[134] LinkedIn,[135] Twitter,[136] and Facebook[137] are similar in that they recognize a users’ ownership of their original content; users are simply licensing these services to upload their information.  The licenses offered by Yahoo,[138] Facebook,[139] and Twitter,[140] however, allow these providers to use the uploaded content without compensating the user, essentially exploiting user material (whether or not copyrighted) without having to pay for it.

 

Under Google’s Universal terms of service, the content of any user remains the property of the user.[141]  The YouTube service acknowledges the user’s ownership rights in their content, but also provides that use of the service includes a non-exclusive license that will continue after the content is removed from its service.[142]

 

Missing from all of these terms of service is the simple recognition that a user’s ownership rights include (a) the right to freely transfer or assign their stored content, and (b) any moral right a user may have in their account.  The moral rights might include the user’s network of friends, email contacts, followers or comments posted in response to the published content,[143] or the files a user expected their provider to keep or store on the service provider’s server.

 

ii.         Storage of Content

 

Although the more popular service providers acknowledge an individual’s ownership of the content uploaded to their service, this is irrelevant to a digital legacy if the content is not available upon death or incapacity.  This raises some interesting questions, such as how long will the content you created (and purportedly own) be accessible after your death? Or if your coma keeps you off-line for a few months, will the content be there when you awaken?

 

The restriction on the amount of storage provided by Gmail and Google+ may be a concern for users who have years of content stored in their account, as the content could be deleted (or no longer saved) if it is too old or voluminous.[144]

 

Facebook’s terms of service do not make any representations as to how long it will store user content.  Facebook includes a definition of an active user, but does not describe the rights or benefits of being an active user.[145]  There is no term that relates to user content or what could happen to an account if a person is no longer an active user, such as whether their profile or content will remain on Facebook in perpetuity.  User content posted to Facebook will remain on the service, unless the account is terminated or the content removed by the user.  According to Facebook, this means content will be available, but inaccessible to the public.[146]

 

The terms of service for LinkedIn[147] and Yahoo[148] make no representations or warranties regarding the storage of any content hosted through their services.

 

The terms of service for AOL represent that it will neither store any user content nor remove any content if a user’s account is terminated.[149] This term is circuitous because older content may remain on AOL’s server, but it may be removed at AOL’s discretion too.

 

Myspace specifically reserves the right to limit the storage of a user’s profile content.[150] The terms also provide that Myspace has the discretion to delete any content posted or transmitted by a user with or without any reason or notice to the account holder.[151] Twitter expressly reserves the right to remove content and does not guarantee the storage of any content uploaded through its service.[152]  Microsoft disclaims responsibility to store any user content and that it may delete or remove content if a user violates the terms of service.[153]

 

Storage is an expensive cost to service providers and users cannot reasonably expect their content to remain on a server forever.  But service providers need to give their users some assurances that account content will be stored for a reasonable and defined period of time or that the content will be removed from closed accounts.  Service providers could also offer to charge a fee for longer-term content storage, or assist users in backing up their content.

 

iii.        Termination of Account

 

If an account is terminated, it should be obvious that all digital content will be erased or deleted.  But what are the reasons or causes that would give rise to a user’s account being terminated?

 

The Twitter terms of service give Twitter the right to terminate an account or reclaim a username at all times.[154] This right appears to be limited to its users who violate the “Twitter Rules” posted on the site.  Misuse of LinkedIn’s services by violating the “Do’s and Don’ts” will result in the termination of a user’s account.[155] Violating Facebook’s terms of service can also result in a termination of a user’s account.[156]

 

Violations of the terms of service with Myspace may result in the termination of a member’s profile and removal of all content,[157] with the listed prohibitions being (a) the access of another user’s profile, and (b) the sale or transfer of all or a part of a user’s profile.[158]

 

The terms of service for Gmail and Google+ accounts do not restrict (or subject the account to termination) for third party access to an account, however a Youtube account will be terminated if a third party does access the account.[159]  AOL[160] and Yahoo[161] provide that their users’ accounts can be terminated if the account is inactive for a period of time.  Microsoft reserves the right to cancel any of its services for violations of its terms of user, and without notice or any reason to its users.[162]

 

Users should analyze (and regularly review) the terms of service they have with any service provider with whom they have valuable or large volumes of content stored.  The fact that an account (and its contents) could be terminated because the user died or has not accessed that account for a short period of time is a concern.  Temporarily not accessing an account because of a lengthy hospitalization, incapacity, or other medical condition should not be used as an excuse to terminate a user’s account content.

 

iv.        Access to Account

 

The decision to grant or deny access to a digital asset is the entire purpose of this paper.  If a person wanted to continue their digital legacy, are there limitations on a fiduciary from accessing a decedent or ward’s account?

 

The terms of service for Microsoft’s Hotmail and Messenger prohibit the assignment of a user’s account and limit all account use to the registered user only, however there will not be a violation of Microsoft’s terms of use if a user delivered their account to a third party.[163]

 

Google’s general terms of service require that the user of an account be the registered user in order to access the YouTube, Gmail, Google+ and Blogger.com services.[164]  There does not appear to be any penalty for access by persons other than the registered user.

 

A LinkedIn user cannot assign their account or allow another person to access their account without notifying and receiving authorization from LinkedIn.[165]  Facebook prohibits the transfer of a user’s account, disclosure of an account password or access to another user’s account without the written permission of Facebook.[166]

 

Access and use of a Twitter account is allowed only if the party accessing the account has agreed to the Twitter terms of service in advance.[167]

 

Yahoo prohibits access by a third-party to its email and chat service (but does not mention its Flickr service), unless authorized by local law.[168] This could mean that a person might confer authority upon a fiduciary to access their Flickr account, but not Yahoo’s email services.  This is an interesting provision (or oversight) because it could also be interpreted to mean that a power of attorney or conservator is permitted to access the account, but not a personal representative.[169]

 

AOL does not prohibit its users from disclosing or providing access to their accounts, but it disclaims all liability for third-party access to a user’s account.  AOL simply warns its users to safeguard their passwords and user names.[170]

 

If a Myspace account holder discloses their password to another person, the user’s account will not be terminated under ¶4 of the Myspace terms of service.[171]  This provision, however, could also be interpreted to give Myspace the right to terminate a user’s profile in the event a designated agent of the user (e.g., power of attorney, conservator or personal representative) is deemed an assignee of the account under ¶¶2 and 8 of the Myspace terms of service.[172]

 

Whether service providers consider access to an account an assignment of the account is unknown.  Clearly, transferring an account to a beneficiary is an assignment of an ownership interest.  But authorizing an agent to access an account should not be considered the transfer of an ownership interest in the account.

 

B.        Rights of Deceased Users

 

Although a person could be registered with numerous service providers, whatever rights they have in their account after death will be determined by the service provider’s terms of service.  The following is a summary of the rights a decedent might have in their digital assets according to the terms of service of the more popular service providers.

 

i.          Yahoo

 

The only service provider discussed in this article that explicitly denies a user’s post-mortem rights in their digital asset is Yahoo.  According to its terms of service,

 

¶27. General Information. 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.[173]

 

Appointing a digital administrator or beneficiary to a Yahoo account is, therefore, prohibited.  Surviving family members who may have a user’s account password should be careful not to inform Yahoo of the user’s death until such time as the content is backed-up.

 

ii.         Microsoft

 

On February 15, 2012, Microsoft introduced their “Next of Kin” procedure wherein a decedent’s Hotmail contents,[174] which include all email and attachments, address book and contact lists can be delivered to the user’s designees on a DVD.[175]  While Microsoft prevents direct access to the decedent’s accounts, it does recognize the importance of its users’ digital legacies.

 

Following traditional estate planning methods, Microsoft respects the authority conferred upon a power of attorney, conservator, personal representative, or other individual designated by will or trust.[176]  In addition, Microsoft will provide assistance to the appointed person in closing any accounts.

 

While this procedure was referred to in Microsoft terms of use before being amended in January 2012,[177] users should be cautioned against relying on this provision for estate planning purposes because it could change the terms of service.  Nevertheless, Microsoft should be commended for offering this extremely helpful process for families and by recognizing the importance of a decedent’s digital legacy.

 

iii.        Google

 

On February 22, 2012, Google introduced an arduous Two Part process that purports to give survivors of deceased users access to their Gmail (only) account “in rare cases.”[178]  The most glaring problem with the Google Two Part process is that an appointed personal representative will be prohibited from accessing the Gmail contents unless they are able to comply with Part 1 of this process.  In order to comply with Part 1, the appointed person is required to deliver “an email message that you have received at your email address, from the Gmail address in question.”[179]

 

If the deceased user’s appointed fiduciary is a corporate fiduciary (e.g., the trust department of any bank), the odds of having an email from the deceased user’s Gmail account are nil.  If the appointed individual is no longer alive (e.g., a simultaneously killed spouse), or someone with whom the decedent did not email from their Gmail account (e.g., court appointed public administrator or guardian ad litem), Part 1 of the Two Part Process cannot be met.

 

In addition to having to comply with this strange Two Part process, survivors of a deceased Gmail user are also not guaranteed access to the account because Google retains the sole discretion to release the account contents.

 

Any decision to provide the contents of a deceased user’s email will be made only after a careful review, and the application to obtain email content is a lengthy process. Before you begin, please understand that Google may be unable to provide the Gmail account content, and sending a request or filing the required documentation does not guarantee that we will be able to assist you.[180]

 

Users of any of Google’s services (including Gmail) should consider the terms of service of the respective sites for purposes of granting access to their accounts, which include delivering their passwords to a trusted person.  Google’s Universal terms of service do not expressly prohibit (or give rise to a breach in the terms of service for) a decedent’s estate or a digital administrator from accessing the content held in a Gmail, Google+ or any of Google’s other services.

 

By way of contrast, the YouTube terms of service provide that assignments of accounts and unauthorized account access are prohibited.  So if access by an estate is considered an assignment of the account, the access is prohibited[181] and if a personal representative’s use is deemed unauthorized, the account could be terminated.[182]  Depending upon Google’s interpretation, a breach of the terms of service would result in the account being deleted.  If read apart from Google’s Universal terms of service, Blogger.com accounts may be accessed by an estate or digital personal representative.[183]

 

Other than blatantly violating the YouTube service, Google does not provide a deceased user’s family with the ability to terminate any of its Google services.  Without a mechanism that would allow for an account to be removed from the Internet, a decedent’s digital legacy could through Google linger in perpetuity.

 

iv.        LinkedIn

 

Users of LinkedIn are prohibited from assigning their account to a third-party, therefore designating a beneficiary to the account is not allowed.[184]  Granting access to an account by a decedent’s estate should be allowed, unless LinkedIn considered a fiduciary to be a “third-party” assignee.[185]  For purposes of signing into (or accessing) a user’s account, the terms of service provide that this remains the obligation of the user who may authorize access to their account.[186]

 

Interestingly, LinkedIn reserves the right under its privacy policy to “memorialize” a deceased member’s profile if LinkedIn is made aware of a user’s death.[187]  However, there is a “Death Verification Form” to notify LinkedIn of user’s death and a surviving family member can request that the LinkedIn account be closed.[188]  This process requires the person informing LinkedIn of the person’s death include an email from the “email address registered to the deceased member’s account.”

 

v.         AOL

 

The terms of service for AOL strictly prohibit the assignment of the AOL Terms of Service.[189]  This prohibition does not prevent a third-party from accessing the user’s account if the passwords were simply given to the person accessing the account.[190]  As a result, appointing a digital administrator may be allowed, but designating an account beneficiary would be forbidden under the terms of service.

 

AOL does provide limited assistance for access to an account for family members of a deceased AOL user.[191]

 

vi.        Twitter

 

A third-party could have the right to access an account if that third-party accepted Twitter’s terms of service,[192] therefore it appears that a Twitter account could continue after the user’s death by either an appointed beneficiary or fiduciary.

 

Twitter provides support for personal representatives or verified family members to cancel deceased users’ account.[193]

 

vii.       Myspace

 

While the Myspace’s terms of service do not reference a deceased user’s profile or uploaded content, a reasonable interpretation of the term “sale” or “transfer” would not include a decedent’s estate accessing the account.[194]  These terms of service seem to allow the appointment of a digital administrator, but prohibit an account beneficiary.

 

Surviving family members may notify Myspace of a user’s death and attempt to cancel the account, subject to Myspace’s discretion.[195]

 

viii.      Facebook

 

Facebook takes a vastly different approach with its deceased users than the other service providers discussed.  Rather than allowing an individual to access or cancel the users account, it encourages survivors to create a “Tribute Page” for the deceased person.[196]  While the “Page” is not the actual user’s profile, Facebook allows the page to be managed by an “authorized representative,” who may or may not be the representative of the user’s estate.[197]

 

What Facebook does not consider is that the deceased user’s profile persists for many years after a person’s death, unless the definition of a “nonactive” user means deceased users.  Other users can freely post derogatory comments or advertise on the decedent’s profile without any rights reserved for the user’s family.  If the terms of service provided that a non-active user’s profile would be deleted after a period of inactivity, this problem would be solved. But a reasonable interpretation of Facebook’s terms of service is that Facebook prohibits both the appointment of a digital administrator and beneficiary of the user’s profile.[198]

 

Clearly, the terms of service for the most popular and frequently used service providers do not consider how a user might plan their digital estate. Without adopting uniform terms of service for deceased and incapacitated users, service providers neither service nor provide the substantial population of users who (a) rely on their services, and (b) have created tremendous wealth for them.

 

 

V.        ESTATE PLANNING FOR DIGITAL LEGACIES UNDER CURRENT LAW

 

The options available for planning a digital legacy are, admittedly, limited under existing law.  A user can deliver a list of their accounts and passwords to a family member or other trusted person.

 

While access to many accounts would be a violation of the terms of service, the account holder has no choice but to take this risk if they want to preserve their content and avoid having their account(s) terminated.[199]  This is not a very good option, to say the least, but this is the best planning option available to users.

 

The real consideration for planning a digital legacy is whether a designee will honor the user’s restrictions, such as (i) not sharing the content with various people, or (ii) not impersonating a deceased or comatose user?

 

A.        Prepare a Separate Writing Related to Digital Assets

 

A written statement should be prepared in accordance with UPC section 2-513 to provide evidence of the user’s testamentary intent for the handling and disposition of their digital assets.  Although section 2-513 is limited to tangible personal property, a hand-signed (as opposed to eSigned) statement is evidence that can be used if the user’s intent were ever questioned in a probate proceeding.  The writing should include each service provider, account password and email address used to register the account.

 

Bequeathing an account password to someone may seem to be as harmless as giving that person access to an account, but it is actually a gift of the contents in the account.  The user should be aware that anything of value within that account would become the property of the recipient.  This means that the recipient could do whatever he or she desired as the “owner” of the content.

 

If there are reservations about giving someone the contents of the account, the user should include instructions or wishes with their written statement that outline the intended uses for the content.  These wishes may include instructions to terminate or close the account, whether access should be limited to reading, printing, or downloading the content, or whether any of the content should be shared with additional people.  The purpose in preparing this writing is to explain what the user wants to happen with their digital legacy.

 

For example, if a user did not want his or her spouse to access their private email, existing state law probably does not give a spouse the right to access or view the account.[200]  Most terms of service for providers do not include a spousal “right” or “privilege” to accounts, but there could be instances where a court or service provider might be inclined to honor a surviving spouse’s request if the decedent’s intent is unknown.

 

Without a list of instructions or evidence of intent, the consequences could be traumatic for many surviving family members of the user if a court granted carte blanche access to a decedent or incompetent person’s accounts.  So long as the user provides a testamentary instruction that either granted or denied access to their digital asset, this instruction should be honored by most probate courts.

 

Individuals preparing this list (or any other type of instructions) should make a clear reference to the existence of this writing in their power of attorney, will and trust documents.  For purposes of safekeeping their instructions, the user must make its existence known to the person(s) designated as their beneficiary, including where it may be found in the event of death or incapacity.

 

B.        Appointment of a Digital Administrator

 

Appointing a digital administrator is important for a user’s digital legacy and to limit potential liabilities in the event an account is not accessed.  If a digital asset contained sensitive information, for example an email that subjected the user to liability, that liability will carry over to the estate.[201]

 

If a personal representative failed, or did not take reasonable action, to gain access to a decedent’s email account, there could be personal liability for any damages suffered by the estate as a result of their inaction.[202]  For example, if there were a time sensitive email in the decedent’s account or an online billing were not discontinued by the personal representative.  At a minimum, if the decedent expressly conferred authority on the personal representative, the fiduciary would know in advance that it has potential exposure if it does not attempt to access the decedent’s accounts.  If the decedent appointed a fiduciary and a digital administrator,[203] the fiduciary should be relieved of any liability for the unknown contents in the accounts.

 

A person’s estate plan should include an appointment of a special digital administrator or a reference to digital assets as something the fiduciary has the authority to manage. The digital administrator’s authority to access the accounts should be clearly defined as:

(i) specific (e.g., terminate the accounts or notify service providers of the user’s death),

(ii) limited (e.g., access to  email accounts only, content may be read but not published, the content cannot be shared with certain people, etc.), or

(iii) general (e.g., unfettered access to all email, social networks, and blog accounts).

It is important that the decedent’s intent be clearly expressed as to whom the authority has been conferred.

 

Fiduciary appointments involving digital assets should include a statement that it has been executed by the user in accordance with the SCA, specifically referencing that the user intended the release to be valid under 18 U.S.C.S. §2702(b) and (c).[204]  A statement to this effect is necessary for all power of attorney, personal representative and trustee appointments that include authority over digital assets.

 

Finally, individuals might consider contracting with a commercial agency to handle their post-mortem digital legacy.  Several online organizations offer these services where a person’s accounts, passwords, and appointed individuals are registered and given assistance in the process of post-mortem planning with digital assets.[205]  If a commercial service were designated as the user’s digital administrator, the user is appointing an experienced party that is familiar with the intricacies of digital assets and service providers.  A commercial digital administrator might be analogous to the appointment of a bank or trust company as the fiduciary for the user’s estate or trust.

 

Until the issues analyzed in this article are clearly defined under state and federal law, fiduciaries should be concerned about the digital assets and their hidden liabilities.

 

VI.       PROPOSED STANDARDIZATION OF INTERNET TERMS AND CONDITIONS

 

The best solution for a business problem is to resolve it privately or through an agreement, not with additional legislation or litigation.  Service providers need to recognize the importance their services play in their users’ lives.  People rely heavily on these sites and do have an expectation that the content they upload or transmit through their sites will be preserved, stored and available as the users decide.

 

A.        Overview

 

Before federal legislators impose a statutory method for protecting digital assets, service providers should adopt their own industry model.[206]  This model should offer basic terms of service that (i) grants users a limited right to appoint a person who may access an account, and (ii) sets forth a reliable storage protocol in the event of a user’s death or incapacity.

 

The recommendations proposed below give users an opportunity to appoint a special administrator and a beneficiary of their digital assets.  While these appointments may appear to overlap, their purposes are different.  The principal reason for the separate designations relates to ownership of the content.

 

A beneficiary becomes the owner of a decedent’s account content, whereas the decedent’s estate becomes the owner of an account accessed by a digital administrator.  A digital administrator also has broader authority to access the user’s account in the event of death and incapacity. A beneficiary has a right to access the account contents upon the user’s death only.

 

The proposed terms of service also allow for the appointment of primary and successor administrators and beneficiaries to their accounts.  The reason for allowing successor appointees follows standard estate planning practice to include a successor in the event the primary appointee is deceased or otherwise unavailable.

 

To prevent fraud or misuse of the appointment feature, the proposed terms of service restrict the account to being available only for reading, downloading, saving and printing by the designee.  Under no circumstances should a designee be able to send new messages, post new blogs or upload new content; in other words, impersonate the user.  An automatic reply would be a desirable feature from the service provider if a new message were sent to the account (or profile or blog), such as “this account is no longer active or receiving messages.”

 

To implement the proposed appointments, a provision that required interested users click the feature should be included in service providers’ terms of service, not as a separate “help” or “support” feature.  In addition, users would agree to waive their privacy rights with regard to these appointments.

 

If a user failed to click the separate terms for a designee appointment, their inaction would be a waiver of the transfer rights and the default terms of service for the provider would control.

 

Finally, users should be given an option to click an election that requires the service provider to terminate their account and contents upon receiving notice of the user’s death.[207]

 

B.        Recommended Terms of Service

 

The following terms of service achieve the goals of (i) protecting user content, and (ii) protecting service providers who offer these options:

 

1.       Appointment of Administrator.  An individual user may designate one primary and two successor individuals as their “special administrator” in the event of the user’s death or incapacity.  To appoint a special administrator, the user must submit the name and email address of each designated administrator under the account settings.  Users may change or revoke their appointment at any time.  If a special administrator is not designated or the email address provided by the user is invalid, in the event of the user’s death or incapacity, the account will not be available to any other person and the account will be terminated. If an account is terminated, all data, content and materials contained within the account will be permanently erased, as provided in ¶5 below.

 

2.       Assignment of Account. An individual user may designate one primary and two successor beneficiaries of their account who shall succeed to the account upon the user’s death.  To appoint a beneficiary, the user must provide the name and email address of each designated beneficiary.  Users may change or revoke a beneficiary appointment through their account and privacy settings at any time. If a beneficiary is not designated or the email address provided by the user is invalid, in the event of the user’s death, the account will not be available to any person and the account will be terminated. If an account is terminated, all data, content and materials contained within the account will be permanently erased, as provided in ¶5 below.

 

3.       Access by Digital Administrators and Designated Beneficiaries.  An individual appointed by the user as a digital administrator or beneficiary of an account shall have the limited right to (a) access the user’s account, (b) review the contents of the account, and (c) print, download or save the contents of the account to an external device.  The appointed digital administrator(s) or beneficiary(ies) shall have no right to send or respond to any e-mail or instant message, add or accept new friends or members to the user’s network, or directly communicate with any person from the account or otherwise transmit content through the user’s account.

 

4.       Notice of Death or Incapacity.  A.  If a user appointed a beneficiary or digital administrator in their account settings, notice of the user’s death or incapacity by the appointed beneficiary or digital administrator will result in the designated individual having access as provided in ¶3 above. Notice to the service provider shall be considered valid upon receipt of a death certificate from the appointed individual.

B.  In the event the appointed beneficiary or digital administrator does not notify the service provider of the user’s death or incapacity, the service provider will notify the user when their account has not been accessed for more than one hundred eighty (180) days.  If the user fails to access his or her account for thirty (30) days after this notice has been sent to the user’s registered email account, the service provider will send notice that the account has not been accessed to the email address of the appointed (and successor) digital administrator(s) or designated beneficiary(ies) that the account has been inactive under these terms of service.  If a designated beneficiary or digital administrator does not respond to the service provider’s notice, or does not attempt to access the account, the service provider may terminate the account and delete the contents in accordance with ¶5 below.

 

5.       Termination of the Account.  Accounts that are not accessed for a period of one hundred eighty (180) days will be subject to termination.  Subject to ¶4 above, if the account user appointed a digital administrator, as defined in ¶1, or designated a beneficiary, as defined in ¶2 above, the account will be terminated if more than two hundred forty days elapse without (a) access to the account by the user, (b) notice to the service provider from the appointed digital administrator of the user’s death or incapacity, or (c) the beneficiary has informed the service provider of the user’s death.

 

6.       Waiver of Privacy.  The user acknowledges that the user is over the age of eighteen (18) years old and has the capacity to appoint the parties set forth in ¶¶1 and 2 above.  The appointment of a digital administrator or beneficiary of their account is an express waiver of any privacy rights the user and the user’s heirs, assigns and estate may have against the service provider under any state or federal law, including any rights under Gramm-Leech-Bliley, 15 U.S.C.S. §6801, et seq., Health Insurance Portability and Accessibility Act, 42 U.S.C.S. §1320d, et seq., Fair Credit Reporting Act, 15 U.S.C.S. §1681, et seq., Stored Communications Act, 18 U.S.C.S. §2701, et seq., and Family Education Rights Privacy Act, 20 U.S.C.S. §1232g.

 

Although service providers offer their standard service to users for free, some do offer additional or premium services for a fee.  These “pay services” can include larger data storage, more search features, additional site content, and additional communication applications. There is a level of inconvenience to the service provider (and a tremendous incentive for users to pay for this service) if the recommended terms of service were adopted.  If the cost to service providers preserving digital legacies were so prohibitive, this inconvenience should be offered to users for a nominal charge (e.g., $1 or $5).

 

VII.      PROPOSED CHANGES TO UNITED STATES LAW TO MANAGE A DIGITAL LEGACY

 

Without an industry standard that properly dealt with a deceased or incapacitated user’s digital assets, changes to state and federal law are necessary to give individuals a limited right to plan their digital legacies. At the same time, legislators must exercise restraint in how they regulate Internet service providers, being mindful that less regulation is usually better for consumers and business.

 

It is incumbent upon legislators to deal with the present technology and expectations of Internet users, especially at a time when the federal government continues its push for a paperless (or digital) society through its own policies.[208]

 

State laws properly govern the rights of incapacitated persons, decedents’ estates and most property law issues.[209] If the individual states were given the ability to create their own definitions or method to transfer digital assets,[210] the interests of users and service providers would surely become convoluted.[211]

 

From a practical standpoint, this must be a federal issue because service providers have the ability to maneuver around individual state laws by simply amending their terms of service relative to the choice of law.[212]  From a legal standpoint, federal law protects against the argument that state laws are preempted by one of the many federal privacy laws covering a person’s identifying information.[213]  Therefore, it is incumbent upon Congress to make necessary amendments to current U.S. law.

 

A.        Federal law

 

Congress should adopt one of the following alternatives to resolve the concerns in this article.

 

i.          Alternative One – Creating a Limited Property Right in Digital Assets

 

If an individual had a quasi-property right to the content stored in their email, social network profile and blog accounts, a user could direct their digital legacy as they decided and not according to the service provider’s of terms of service.  But where should this property right be included in the United States Code?

 

The fact that some of the content in a user’s account are “stored electronic communications,” the SCA would seem to be the logical federal law to amend.  The SCA, however, is a criminal privacy statute.  Several courts have interpreted the SCA and held that it cannot be used in non-criminal proceedings, such as requests for the disclosure of stored communications pursuant to a civil subpoena.[214]  The exceptions to SCA, likewise, do not consider the stored communications of a deceased user as a privacy violation.[215] Therefore, creating a property right within the SCA seems illogical considering the nature of Title 18.

 

Creating a section in the Copyright Act to recognize rights in digital assets makes more sense than in the U.S. Criminal Code.[216]  The Copyright Act defines and protects property rights and the interests of intellectual property owners. When it adopted the DMCA in 1998, Congress recognized the popularity of the Internet, as well as the importance of both service providers and the digital medium in protecting copyrights. So important are the service providers in online copyright piracy, the DMCA has an immunity provision for Internet service providers who identify persons who use their services to infringe on the copyrights of others.[217]

 

In 1998, there was also an overwhelming need to grant special status for vessel hull designers under federal law.  As a result, Congress created Chapter 13 in the Copyright Act just for that special class of persons because there was a gap under the existing trademark, patent and unfair competition statutes.[218] Why not make a specially designed provision in the Copyright Act for digital assets?

 

A new chapter in the Copyright Act would allow Congress to create a more limited right than the right it created for vessel hull designers.[219] This chapter could create a moral right for users in their digital assets. The right would have property-like status that a user could assign or direct in the event of death or incapacity.[220]

 

The concept of moral rights is not a new concept in the United States, as the Copyright Act already protects the moral rights of artists under the Visual Artists Rights Act (“VARA”).[221] Under VARA, artists are given a right to object or prevent the “distortion, mutilation or modification” of an artistic work under a theory that any manipulation to their work would cause injury or damage the artist’s name, honor and reputation.[222]  California, Massachusetts and New York provide moral rights to artists in their states with similar protections as the VARA.[223]

 

The moral rights created by VARA, however, protect an artist’s creative integrity during life.[224] These rights allow the artist to prevent a work from being manipulated or changed in such a way that the artist’s reputation might be damaged.[225]   When the artist dies, his or her moral rights are terminated.

 

Today’s web users abandon the moral rights in their digital assets when they delete or remove content, or when they decide not to access an account.  These are conscious decisions; death or incapacity are not conscious decisions and they should not dictate a user’s digital legacy.

 

Considering the personal attachment and reputations people create through email, blogs and social networking, a moral right is an appropriate status that protects the integrity of users’ digital legacies after life. The Copyright Act is clear that an artist’s moral right is a supplement to any other copyright protection the artist may have under the Act.[226]  Therefore, an artist’s moral rights under VARA are not nearly as extensive as a full-blown copyright;[227] a moral right in a digital asset should be similarly limited.

 

If Congress were to adopt an amendment to the Copyright Act (or adopted a new chapter elsewhere in the U.S. Code) it must be a carefully defined amendment. The Copyright Act should simply give protected status for digital assets, such as a limited right protecting the content stored in digital accounts only.  Congress should not make the accounts or the underlying content as copyrighted property.

 

The present law dealing with digital assets is bad public policy.  If a person has testamentary intent and does not want to abandon their digital legacy, the federal law should give people an opportunity to make this decision in advance.  Providing a transferable moral right gives users the opportunity to make their own decisions with regard to their digital legacies.[228]

 

ii.         Alternative Two – Mandatory Terms of Service

 

Implementing the second alternative is as easy as a federally mandated term of service in the same form as the proposed terms set forth in V.B., supra.  The authority to impose these terms of service are Titles 15 and 47 of the United States Code which regulate Commerce and Trade, and Telegraphs, Telephones and Radiotelegraphs; Congress has used the authority conferred upon it by the Constitution to regulate the Internet under these Titles on previous occasions.

 

The Federal Trade Commission (“FTC”) has the authority to prevent unfair methods of competition and seek redress for conduct that may be injurious to consumers.[229]   The FTC has direct authority under E-Sign to provide consumer protection for the validity and legal effect of electronic contracts in interstate and foreign commerce, and must report to Congress if any statutory changes are necessary under E-Sign.[230]

 

Under the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”),[231] the FTC was conferred regulatory authority (along with other federal agencies) to enforce the provisions of the act that related to commercial email sent to consumers.[232]  Under the Children’s Online Privacy Protection Act, the FTC was given the authority to protect the interests of children who surfed the Internet.[233]

 

The FTC is also authorized to seek redress against specific violators of the Federal Trade Commission Act (the “FTC Act”), to promulgate rules to prevent unfair acts and violations, and make recommendations to Congress for legislative changes.[234]  Google and Facebook have been the targets of recent FTC actions based on changes to their privacy policies.[235]

 

But whether service providers are engaging in deceptive or misleading activities to their users is not the point of this article; nor is it to discuss Internet users’ privacy rights.  The FTC has the authority to investigate whether consumers are harmed by not having the ability to control their digital legacies.  If this issue were compelling enough, it can issue appropriate and mandatory terms of service through its regulatory authority under the FTC Act, E-Sign or request the specific authority from Congress.

 

Congress has also delegated authority to the Federal Communications Commission (“FCC”) to regulate various elements of online activities.  For example, the Communications Assistance for Law Enforcement Act (“CALEA”) is a federal law that directly uses Internet service providers as a partner in fighting online crime.[236]

 

Under CALEA and the FCC’s regulations, service providers are already aware of their obligations to Internet users and the digital content transmitted by them. [237]  Providers of “information services” and “electronic messages” can be compelled to amend these terms of service in such a way as to respect the content their users entrust to them as hosts.[238]  If the FCC does not already have the regulatory authority to impose these terms of service, Congress could delegate that authority under Title 47.

 

Congress should take whatever action is necessary to require that service providers allow users the right to provide for a post-mortem disposition of their digital assets.[239] If they are using service providers to enforce criminal laws, why not give a majority of Internet users a limited right to transfer or assign their account to a designated digital administrator or beneficiary.

 

iii.        Immunity

 

In the event Congress were compelled to approve either of the proposed alternatives, any new legislation must include a provision granting service providers immunity from (a) civil suits brought by a user’s surviving family members, and (b) liability under the federal privacy statutes.[240]  Various types of immunities currently exist for service providers under the SCA,[241] DMCA,[242] and the Communications Decency Act,[243] therefore, if either alternative were adopted, service providers would need an additional immunity to protect them from civil actions brought by users and their survivors.

 

There is great potential for “sour grapes” litigation from family members aggrieved by a user’s decision to give access to their digital assets to one person over another or to completely exclude a family’s access.  The privacy statutes and state laws governing wills, trusts and testamentary transfers would be used as a theory for many of these actions. The service providers should not be targeted as the “deep pocket” against whom someone would blame for a user’s unpopular testamentary decision.

 

If an individual failed to designate a beneficiary or administrator for their digital assets, the service provider should not be held liable for their failure to act.

 

B.        State law[244]

 

If Congress did not feel compelled to take action in this area, there are changes that can be made at the state level.  Ideally, states would not take it upon themselves to adopt any of the alternatives (or versions thereof) in VII.A., supra., for their residents.  Any individual state legislation would create an incredible amount of confusion for users and service providers.[245]  It is therefore recommended that the limited changes, as provided hereinafter, be made to state law to recognize digital assets.

 

The UPC was amended a few years ago to recognize electronic signatures.  In the spirit of that amendment, it should be further updated by (i) allowing a person to provide instructions related to digital assets in the event of death or incapacity, (ii) including a provision allowing for the appointment of a digital or special administrator, and (iii) granting fiduciaries the authority to take control of a person’s digital assets.[246]  The special administrator’s authority should be exercised in conjunction with the overall authority conferred upon the personal representative.

 

A new paragraph (28) must be included under section 3-715, Transactions Authorized for Personal Representatives, Exceptions. This new paragraph would provide the following:

 

(28) to access, print, download or otherwise preserve the digital content, including any stored electronic communications under 18 U.S.C.S. 2701, et seq., of any account the decedent created as an account user through a “service provider,” as that term is defined in 17 U.S.C.S. 512(k)(1)(A)

 

A similar provision should be included as section 5-425(26) for the authority of a conservator appointed for an incapacitated person.[247]

 

UPC section 2-510 relates to the doctrine of incorporation by reference, where a testator may incorporate a separate writing or instructions into a will. This section should provide that the contents of an account, as defined in proposed section 3-715(28), can be included in this separate writing. If digital assets were recognized as property under federal law, this section 2-510 would still need to be updated to recognize digital assets as intangible property.

 

Section 2-513 of the UPC authorizes a decedent to include a statement with his or her will to dispose of items of tangible personal property.  The purpose of the written statement is to provide an effective method of disposing a decedent’s personalty without a great deal of effort. In their 2008 Comments to the UPC, the drafters noted that “[t]he typical case covered by this section would be a list of personal effects and the persons whom the decedent desired to take specified items.”[248]  The digital assets, as defined in proposed section 3-715(28), should be included as an asset that designated in a statement by the decedent under section 2-513.

 

Section 3-617 of the UPC provides for the appointment of a special administrator of the decedent’s estate. This should be amended to allow the special administrator to deal with digital assets, as defined in proposed section 3-715(28), separate from the personal represenative.

 

Finally, the UPC allows for an expedited administration to transfer assets by affidavit when the value of the estate is less than $5,000.[249] The purpose of this section is limited to small administrative procedures, but section 3-1201(b) directs transfer agents of securities to honor the affidavit and change the stock registration.  Section 3-1201(a) allows the affidavit process to transfer debt instruments, stocks and chose in actions to designated beneficiaries.  This section should be amended to include the expedited transfer of digital assets, as defined in proposed section 3-715(28).

 

VIII.    CONCLUSION

 

The overall lack of uniformity in the terms of service for some of the most popular Internet service providers is frustrating for estate planning purposes considering the number of people that use email, blogs and social networks.  For anyone who has a preference for or against allowing their digital content to be shared or deleted in the event of their death or incapacity, the current terms of service must be revised.

 

The traditional estate planning tools are of little use to planning a digital legacy.  Until service providers acknowledge the disservice to their customers, the hundreds of millions of daily users may seek alternative service providers who are genuinely concerned with the digital content transferred through their sites.

 



* Daniel S. Hoops is an Assistant Professor, Taxation and Business Law Department, Walsh College, Troy Michigan.  Prof. Hoops received his Bachelor in Music (Trumpet Performance) from the University of Michigan, Juris Doctorate cum laude from the Detroit College of Law Michigan State University and Master of Law (Estate Planning) from the University of Miami.

 

 

© 2012 Daniel S. Hoops  All Rights Reserved



[1]James D. Lamm, www.digitalpassing.com; Molly Wilkens, Privacy and Security During Life, Access After Death: Are they Mutually Exclusive?, 62 Hastings L.J. 1037 (2011); Michael D. Roy, Beyond the Digital Asset Dilemma: Will Online Services Revolutionalize Estate Planning?, 24 Quinn. Prob. Law Journ. 376 (2011); Dennis Kennedy, Estate Planning for Your Digital Assets, Law Practice Today (3/2010); Johnathan J. Darrow and Gerald R. Ferrera, Who Owns a Decedent’s E-Mails: Inheritable Probate Assets or Property of the Network?, 10 N.Y.U. J. Legis. & Pub. Pol’y 281 (2007); Justin Atwater, Who Owns E-mail? Do You Have the Right to Decide the Disposition of Your Private Digital Life?, 2006 Utah L. Rev. 397.

[2]In addition to requiring analysis under Children’s Online Privacy Protection Act, 15 U.S.C.S. §§6501-6506, individual state laws related to parental, custodial and guardianship rights and their relationship to children raise a host of interesting issues for other commentators.

[3]For purposes of pay-networks (e.g., eHarmony.com), the service provider does not rely solely on user content for its revenues, therefore, users should not have as great an expectation for their digital content under this business model.  In addition, many free services have “fee-based” options that give their users additional features, including content storage. These pay-features are also not discussed in this paper.

[4]Because the competition on a gaming site (e.g., blizzard.com’s World of Warcraft) relies on a user’s skill and effort, online games would be manipulated through lifetime and testamentary transfers of credits and other virtual money by fellow players.

But see, Olivia Y. Troung, Virtual Inheritance: Assigning More Virtual Property Rights, 2009 Syracuse Sci. & Tech. L. Rep. 57.

[5]It is worth noting that the issues discussed in this article are relevant in determining the value of an interest owned by deceased shareholder, partner or member if a digital asset were created and owned by a business entity.  For these purposes, a digital asset would be considered a “§197 Intangible” under the Internal Revenue Code, similar to other business intangibles such as goodwill or covenants not to compete.

[6]According to Miniwatts Marketing Group, on March 31, 2011, there were 2.095 billion worldwide users of the Internet. http://internetworldstats.com/stats.htm

[12]http://visualize.yahoo.com (accessed 2/17/2002)

[13]http://press.linkedin.com/about (accessed 2/17/2012).

[14]Anderson and Rainie, The future of social relations, Pew Research Internet and American Life Project, July 2, 2010. http://www.pewinternet.org/Reports/2010/The-future-of-social-relations/Overview.aspx

[15]17 U.S.C.S. §512(k)(1)(A) “service provider” is defined as a provider of online services or network access, or the operator of facilities therefor, including an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.

[16]Federal Trade Commission, Protecting Consumer Privacy in an Era of Rapid Change: A Proposed Framework for Business and Policymakers, at 33 (12/2010) http://www.gov/os/2010/12/10201privacyreport.pdf.

[17]Associated Press, After IPO, Facebook will face pressure to crank up revenue. $4.39 per user wont be enough, 2/2/2012. http://www.washingtonpost.com/business/technology/friending-wall-street-facebook-hopes-to-raise-5-billion-in-highly-anticipated-ipo/2012/02/02/gIQAZL9WjQ_story.html. Also, see Joseph Turow, The Daily You: How the New Advertising Industry is Defining Your Identity and Your Worth, Yale University Press (2011).

See, United States v. Maynard, 615 F.3d 544 at 556-564 (D.C. Cir. 2010).

[18]Unauthorized disclosures under the Stored Communications Act may result in criminal penalties.  See, 18 U.S.C.S. §§2701-2712.

[19]17 U.S.C.S. §512(k)(1)(A).

[20]Federal Trade Commission, Exploring Privacy–A Roundtable Series (12/7/2009) http://www.ftc.gov/bcp/workshops/privacyroundtables/index.shtml.

[21]92% of online adults use email, with 61% using email on a daily basis.  Purcell, Search and email still top the list of most popular online activities, Pew Research Internet and American Life Project, August 9, 2011. http://www.pewinternet.org/Reports/2011/Search-and-email/Report.aspx

[22]Government Accountability Office Report GAO-12-195 SP (October 14, 2011). Total mail volume is expected to decline by 25% and First-Class Mail is expected to decline by 50% by the year 2020.

[23]Radicati Group Inc. (April 19, 2010) there were 2.9 billion email addresses and by 2014, there are projected to be 3.8 billion email addresses. http://www.radicati.com/?p=5290

[24]In October 2011, there were approximately 260 million Gmail users. Daniel Terdiman, Microsoft aiming to clean up Hotmail user’s inbox, CNET News (10/3/2011) http://news.cnet.com/8301-13772_3-20114975-52/microsoft-aiming-to-clean-up-hotmail-users-inboxes/

[25]In October 2011, there were approximately 310 million Yahoo email users. Daniel Terdiman, Microsoft aiming to clean up Hotmail user’s inbox, CNET News (10/3/2011) http://news.cnet.com/8301-13772_3-20114975-52/microsoft-aiming-to-clean-up-hotmail-users-inboxes/

[26]In July 2009, there were 36.4 million AOL users in the U.S.. Erick Schonfeld, Gmail Nudges Past AOL Email in the U.S. to take the No. 3 Spot, Techcrunch.com (8/14/2009) http://techcrunch.com/2009/08/14/gmail-nudges-past-aol-email-in-the-us-to-take-no-3-spot/.

[27]In October 2011, there were approximately 350 million Hotmail users. Daniel Terdiman, Microsoft aiming to clean up Hotmail user’s inbox, CNET News (10/3/2011) http://news.cnet.com/8301-13772_3-20114975-52/microsoft-aiming-to-clean-up-hotmail-users-inboxes/

[28]Internet social networks allow members to populate their personal network by searching their email contact lists. Integrating one type of service with another has helped grow online socializing. See, Madden and Smith, Reputation and Social Media, Pew Research Internet and American Life Project, May 26, 2010. http://www.pewinternet.org/Reports/2010/Reputation-Management/Summary-of-Findings.aspx

[29]Wilkens, supra note 1, 1045-1048.

[30]Section 3-712, Uniform Probate Code (2008). Personal representative’s liability for breach of fiduciary duty includes the failure to take control of the decedent’s estate.

[31]Section 3-703, Uniform Probate Code (2008). Personal representative has standing to sue in the name of the decedent’s estate.

[32]Wilkens, supra note 1.

[33]Purcell, Search and email still top the list of most popular online activities, Pew Research Internet and American Life Project, August 9, 2011. http://www.pewinternet.org/Reports/2011/Search-and-email/Report.aspx

[34]The actual number of blogs is relatively unknown:  WordPress.com provides that it has 15.1 million hosted blogs and 17.4 million self-hosted blogs (http://en.wordpress.com/stats/stats last accessed 3/9/2012).  The statistics for blogger.com, blogspot.com, TypePad and other popular providers were not available to the author.  The Nielson Company’s BlogPulse.com reported on December 23, 2011 that there were 180,618,990 identified blogs. (http://www.blogpulse.com).  The figure reported by Neilson Company did not include the membership accounts for Twitter, YouTube or Flicker.

[35]See, discussion III.C., infra.

[36]See GoDaddy.com Terms of Service. ¶15. SUCCESSORS AND ASSIGNS.  These Terms of Use shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. (http://www.godaddy.com/Agreements/ShowDoc.aspx?pageid=TOU&ci=20801&app_hdr=0  accessed 3/9/2012)

[37]To review a specific state’s statute related to decedents’ estates and incapacitated persons’ estates, the following is a link to the statutes of all fifty states. http://estate.findlaw.com/probate/probate-court-laws/estate-planning-law-state-probate.html

[38]Id.

[39]See, section 3-711 of the Uniform Probate Code (“UPC”).

[40]UPC §§3-701 through 3-702.

[41]UPC §3-704.

[42]See, UPC §3-201, et seq.

[43]See, UPC §5-401, et seq.

[44]A power of attorney can be springing (effective only upon the person’s disability) or general (effective immediately, including if the person has full capacity). See, section 109, Uniform Power of Attorney Act. http://www.law.upenn.edu/bll/archives/ulc/dpoaa/2008_final.htm

[45]See, UPC §§5-501 through 5-505.

[46]Conn. Gen. Stat. §45a-334a; Idaho Code 15-3-715(28); Ind. Code §29-1-13-1.1; Okla. Stat. tit. 58, §269; and R.I. Gen. Laws §33-27-3.

[47]Idaho Code 15-5-424(3)(z).

[48]Another scholarly article took a different perspective by making the analogy that service providers and email users are in a bailment relationship. See, Darrow and Ferrera, supra. note 1 at 301-311.

[49]Restatement (First) of the Law of Property, §117 (1936); In re Estate of Rider, 711 A.2d 1018 (Pa.Super.Ct. 1998); Meadows v. Belknap, 483 S.E.2d 826 (W.Va. 1997); Matter of Estate of Fisher, 169 Misc. 2d 412, 645 N.Y.S.2d 1020 (Sur.Ct. 1996).

[50]For example, see, Microsoft Terms of Use.  MATERIALS PROVIDED TO MICROSOFT OR POSTED AT ANY MICROSOFT WEB SITE. . . .The licenses granted in the preceding sentences for a Images will terminate at the time you completely remove such Images from the Services, provided that, such termination shall not affect any licenses granted in connection with such Images prior to the time you completely remove such Images. . . .

http://www.microsoft.com/about/legal/en/us/IntellectualProperty/Copyright/Default.aspx#E1  accessed 3/9/2012).

[51]See discussion IV.A., infra.

[52]A nice feature offered by Microsoft is a procedure that allows representatives of both incapacitated persons and decedents to close a user’s account. See, https://windowslivehelp.com/solution.aspx?solutionid=2aa89618-2244-4187-8383-39b5503587f5  (accessed 3/9/2012).

Note:  Google’s Gmail, AOL, LinkedIn, Facebook, Twitter and Myspace have different procedures for surviving family members interested in terminating a deceased user’s account. See, IV.B., infra.

[53]See discussion at IV, infra.

[54]Yahoo, Microsoft, Google, AOL, LinkedIn, Myspace, Twitter and Facebook have various policies that may allow a user’s family to close a decedent’s account. See, discussion at IV.B., infra.

[55]Robertson v. Wegmann, 436 U.S. 584, 589 (1978) “State statutes governing the survival of state actions do exist, however. These statutes, which vary widely with regard to both the types of claims that survive and the parties as to whom survivorship is allowed, see W. Prosser, Law of Torts 900-901 (4th ed. 1971), were intended to modify the simple, if harsh, 19th-century common-law rule: “[An] injured party’s personal claim was [always] extinguished . . . upon the death of either the injured party himself or the alleged wrongdoer.” Moor v. County of Alameda, 411 U.S. 693, 702 (1973)”.

[56]Mineer v. Williams, 82 F.Supp.2d 702 (E.D. Ky. 2000); Estate of Benson v. Minnesota Board of Medical Practice, 526 N.W. 2d 634 (Minn.Ct.App. 1995)

[57]Grimes v. CBS Broadcast International, 905 F.Supp. 964 (N.D. Okla. 1995); Flynn v. Higham, 149 Cal.App.3d 677, 197 Cal.Rptr. 145 (2d. Dist. 1983); James v. Delilah Films, Inc., 144 Misc. 2d 374, 544 N.Y.S.2d 447 (Sup. 1989); Lugosi v. Universal Pictures, 25 Cal.3d 813, 160 Cal.Rptr. 323, 603 P.2d 425 (1979).

[58]See, Henry H. Perritt, Jr., Jurisdiction in Cyberspace, 41 Vill. L. Rev. 1 (1996); Jack L. Goldsmith, Against Cyberanarchy, 65 U. Chi. L. Rev. 1199 (1998); David G. Post, Governing Cyberspace: Law, 24 Santa Clara Computer & High Tech L. J. 883 (2008); Symeon C. Symeonides, Choice of Law in Cross-Border Torts: Why Plaintiffs Win and Should, 61 Hastings L. J. 337 (2009).

[59]See Wilkens, supra n. 1 at 1048-1060 for a discussion on the privacy and security issues that affect estate administrations.

[60]18 U.S.C.S. §2510 provides in part: (15) “electronic communication service” means any service which provides to users thereof the ability to send or receive wire or electronic communications; (17) “electronic storage” means—(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication.

[61]18 U.S.C.S. §§2701-2712.  See also Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508.

[62]Title 17, United States Code.

[63]Under SCA, there are exceptions to the disclosure of stored communications, including when a user authorized the release of a stored communication (18 U.S.C.S. §2701(c)(2), to an addressee or intended recipient of such communication or an agent of such addressee or intended recipient (18 U.S.C.S. §2702(b)(1), and with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of remote computing service (18 U.S.C.S. §2702(b)(3).

[64]See, 1998 Digital Millennium Copyright Act, P.L. 105-304.

[65]17 U.S.C.S §102(a).

[66]17 U.S.C.S. §301(a).

[67]17 U.S.C.S. §411(a).

[68]Shannon E. Trebbe, Enhancing Copyright Protection for Amateur Photographers: A Proposed Business Model, 52 Ariz. L. Rev. 97 (2010).

[69]Warner Bros. Entertainment, Inc. v. X One X Productions, 644 F.3d 584 (8th Cir. 2011).

[70]17 U.S.C.S. §§101 and 103.  But, see Darden v. Peters, 488 F.3d 277 (4th Cir. 2007), cert. den. 552 U.S. 1230.

[71]Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

[72]Id.

[73]The purpose of the definition of “compilation” is to emphasize that collections of facts are not copyrightable per se and section 101 does not provide protection for collections of facts that are selected, coordinated and arranged in a way that lacks utter originality. Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).

[74]Salinger v. Random House, Inc., 811 F.2d 90 (2nd Cir. 1987).

[75]The right to publish a work is a valuable and distinct right from the ownership of the physical work.17 U.S.C.S. §106.

Ownership of a copyright and the material object underlying the copyright are distinct things under the Copyright Act.17 U.S.C.S. §202; Bateman v. Mnemonics, Inc., 79 F.3d 1532 (11th Cir. 1996).

[76]Eric Schlachter, The Intellectual Property Rennaisance in Cyberspace: Why Copyright Law Could Be Unimportant on the Internet, 12 Berkley Tech. L.J. 15 (1997) (forwarding email could be microinfringements); Eric Goldman, A Road to No Warez: The No Electronic Theft Act and Criminal Copyright Infringement, 82 Or. L. Rev. 369 (2003); Ruth L. Okediji, Trading Posts in Cyberspace: Information Markets and the Construction of Proprietary Rights, 44 B.C. L. Rev. 545 (2003).

[77]See, DMCA 512 safeharbor for service providers who actively work with copyright owners to remove infringing transmissions.17 U.S.C.S. §512.

[78]Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985).

[79]See, RayMing Chang, “Publication” Does Not Really Mean Publication: The Need to Amend the Definition of Publication in the Copyright Act, 33 AIPLA Q.J. 225, 232 (2005); Julia Marter, When and Where Does an Internet Posting Constitute Publication? Interpreting Moberg v. 33T LLC, 21 Fordham Intell. Prop. Media & Ent. L.J. 495 (2011).

[80]Nitke v. Gonzalez, 413 F.Supp.2d 262 (S.D.N.Y. 2006); Getaped.com, Inc. v. Cangemi, 188 F.Supp.2d 398 (S.D.N.Y. 2001).

[81]17 U.S.C.S. §101. To perform or display a work “publicly” means— (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

To “transmit” a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.

See, Getaped.com, Inc. v. Cangemi, 188 F.Supp.2d 398 (S.D.N.Y. 2002); Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 194 F.3d 1211 (11th Cir. 1999); Aerospace Services Intern. v. LPA Group, Inc., 57 F.3d 1002 (11th Cir. 1995).

[82]Copyright laws are meant to motivate the creativity of authors by providing rewards for their efforts, while allowing the public access to the creative genius of the authors. See, Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984); Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc., 342 F.3d 191 (3rd Cir. 2003); Bond v. Blum, 317 F.3d 385 (4th Cir. 2003).

[83]Note: Users who have reservations about posting a blog or sharing their original content through a service provider should either not post their content or register their work with the Copyright Office.  Once the work is registered, the user can link the work through their blog or social network profile.  Failing to register a work or blindly publishing a work through a social network is the fault of no one, but the author.

[84]Electronic Signatures in Global and National Commerce Act, 15 U.S.C.S. §7001, et seq.; National Conference of Commissioners on Uniform State Laws, Uniform Electronic Transactions Act. http://www.law.upenn.edu/bll/archives/ulc/fnact99/1990s/ueta99.htm

[85]Breman v. Zapata Off-Shore Co., 407 U.S. 1 (1972).

[86]Leatherwood v. Cardservice Int’l, Inc., 929 So.2d 616 (Fla. Dist. Ct. App. 2006); DeJohn v. The .TV Corporation Int’l, 245 F. Supp. 913 (N.D. Ill. 2003); Forrest v. Verizon Comm., Inc., 805 A.2d 1007 (D.C. App. Ct. 2002); Barnett v. Network Solutions, Inc., 38 S.W.3d 200 (Tex. App. 2001).

[87]National Conference of Commissioners on Uniform State Laws, Uniform Electronic Transactions Act. http://www.law.upenn.edu/bll/archives/ulc/fnact99/1990s/ueta99.htm; 15 U.S.C.S. §7001, et seq.

[88]Page 1, Federal Trade Commission and Department of Commerce Recommendation to Congress, Electronic Signatures in Global and National Commerce Act: The Consumer Consent Provision in Section 101(c)(1)(C)(ii) (June 2001). http://www.ftc.gov/os/2001/06/esign7.htm

[89]Electronic Privacy Information Center, Social Network Privacy, http://epic.org/privacy/socialnet/ (accessed 3/6/2012); Privacy Rights Clearinghouse, Fact Sheet 18: Online Privacy: Using the Internet Safely, http://www.privacyrights.org/fs/fs18-cyb.htm (2/2012); Ki Mae Heussner, Quitting Facebook: What Happens When You Deactivate? (ABC News 5/11/2010) http://abcnews.go.com/Technology/quitting-facebook-deactivate/story?id=10607753; Jessica Guynn, Google Buzz poses a major privacy risk for kids, analyst (and parent) says, LA Times (2/22/2010) http://latimesblogs.latimes.com/technology/2010/02/google-buzz-privacy-kids.html.

[90]15 U.S.C.S. §7002(a)(1).

Note: As of the date of this publication, the UETA has been adopted by forty-seven (47) states with New York, Illinois and Washington being the hold-outs.

[91]See, III.D., infra.

[92]Jennifer Femminella, Online Terms and Conditions Agreements: Bound by the Web, 17 St. John’s J. Legal Commentary (2003); Robert Lee Dickens, Finding Common Ground in the World of Electronic Contracts: The Consistency of Legal Reasoning in Clickwrap Cases, 11 Marq. Intell. Prop. L. Rev. 379 (2007); Ty Tasker and Daryn Pakcyk, Cyber-Surfing on the High Seas of Legalese: Law and Technology of Internet Agreements, 18 Alb. L. J. Sci. & Tech. 79 (2008). See, Ira S. Rubinstein, et al., Data Mining and Internet Profiling: Emerging Regulatory and Technological Approaches, 75 U.Chi.L.Rev. 261 (2008).

[93]Novak v. Overature Services, 309 F.Supp.2d 446, 451 (E.D. N.Y. 2004) (clicking acceptance of the terms of service is not acceptance of the agreement); Forrest v. Verizon Comm., Inc., 805 A.2d 1007, 1010 (D.C. App. Ct. 2002); America Online, Inc. v. Booker, 781 So. 2d 423 (Fla. Dist. Ct. App. 2001); Koch v. America Online, Inc., 139 F.Supp.2d 690 (D.Md. 2000).

[94]United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009); Pichey v. Ameritech Interactive Media Services, 421 F.Supp. 1038 (W.D. Mich. 2006); Register.com, Inc. v. Verio, Inc., 126 F.Supp. 2d 238 (S.D.N.Y. 2000); Caspi v. Microsoft Network, 732 A.2d 528 (N.J. Super. Ct. App. Div. 1999). James J. Tracy, Legal Update, Browsewrap Agreements: Register.com v. Verio, Inc., 11 B.U. J. Sci. & Tech. L. 164, 171 (2005); Also, see Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991).

But see, Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593, 606 (E.D. Pa. 2007) (terms of service can be held unenforceable if there are no market alternatives to a particular service).

[95]See, IV., infra.

[96]See, Mike Masnick, Supreme Court Chief Justice Admits He Doesn’t Read Online EULAS or Other “Fine Print,” Techdirt (10/22/2010) http://www.techdirt.com/articles/20101021/02145811519/supreme-court-chief-justice-admits-he-doesn-t-read-online-eulas-or-other-fine-print.shtml.

[97]I.Lan Systems, Inc. v. Netscout Service Level Corp., 183 F.Supp. 2d 328 (D.Mass. 2002); Specht v. Netscape Communications Corp., 150 F.Supp. 2d 585 (S.D.N.Y. 2001); Decker v. Circus Circus Hotel, 49 F.Supp.2d 743 (D.N.J. 1999); M.A. Mortenson Co., Inc. v. Timberline Software Corp., 970 P.2d 803 (Wash.App. 1999).

[98]Register.com, Inc. v. Verio, Inc., 126 F.Supp.2d 238 (S.D.N.Y. 2000); Briceno v. Sprint Spectrum, L.P., 911 So.2d 176 (Fla. Dist. Ct. App. 2005); Hubbert v. Dell Corp., 835 N.E.2d 113 (Ill. App. Ct. 2005);

But, see Specht v. Netscape Communications Corp., 150 F.Supp.2d 585 (S.D.N.Y. 2001) (notice was inadequate because users did not affirmatively accept the terms of service) Douglas v. U.S. District Court for Central District of California, 495 F.3d 1062 (9th Cir. 2007); BellSouth Communications System, L.L.C. v. West, 902 So.2d 653 (Ala. 2004) (change to terms of service unenforceable because provider could not prove that user continued to access the service after the change in terms was posted).

[99]See, fn. 85.

[100]¶13. Amendments. (1) We can change this Statement if we provide you notice (by posting the change on the Facebook Site Governance Page) and an opportunity to comment.  To get notice of any future changes to this Statement, visit our Facebook Site Governance Page and become a fan. (2) For changes to sections 7, 8, 9, and 11 (sections relating to payments, application developers, website operators, and advertisers), we will give you a minimum of three days notice. For all other changes we will give you a minimum of seven days notice. All such comments must be made on the Facebook Site Governance Page. (3) If more than 7,000 users comment on the proposed change, we will also give you the opportunity to participate in a vote in which you will be provided alternatives. The vote shall be binding on us if more than 30% of all active registered users as of the date of the notice vote. (4) We can make changes for legal or administrative reasons, or to correct an inaccurate statement, upon notice without opportunity to comment. (http://www.facebook.com/legal/terms?ref=pf accessed 3/9/2012).

[101]ACCEPTANCE OF TERMS. The services that Microsoft provides to you are subject to the following Terms of Use (“TOU”). Microsoft reserves the right to update the TOU at any time without notice to you. The most current version of the TOU can be reviewed by clicking on the “Terms of Use” hypertext link located at the bottom of our Web pages.

http://www.microsoft.com/about/legal/en/us/IntellectualProperty/Copyright/Default.aspx#E1  accessed 3/9/2012).

[102]USE OF SERVICES. . . . Microsoft reserves the right to terminate your access to any or all of the Communication Services at any time, without notice, for any reason whatsoever. http://www.microsoft.com/about/legal/en/us/IntellectualProperty/Copyright/Default.aspx#E1  accessed 3/9/2012).

[103]See, http://www.google.com/intl/en/policies/terms/ accessed 3/9/2012), YouTube Terms of Service ¶1B. (http://www.youtube.com/t/terms accessed 3/9/2012); Myspace.com Terms of Use Agreement (http://www.myspace.com/Help/Terms?pm_cmp=ed_footer accessed 3/9/2012); Twitter Terms of Service (http://twitter.com/tos accessed 3/9/2012); LinkedIn User Agreement ¶9.E. (http://www.linkedin.com/static?key=user_agreement accessed 3/9/2012); AOL Terms of Service, General Legal Terms (http://legal.aol.com/terms-of-service/full-terms/ accessed 3/9/2012).

[104]http://www.google.com/policies/ (accessed February 12, 2012).

[105]The states that have adopted the UPC are:  Alaska, Arizona, Colorado, Florida, Hawaii, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska, New Mexico, North Dakota, South Carolina, South Dakota and Utah. National Conference of Commissioners on Uniform State Laws, http://www.nccusl.org/Act.aspx?title=Probate%20Code accessed 1/2/2012.

Note:  the UPC was amended in 2008, as of 1/2/2012 Colorado, New Mexico, North Dakota and Utah follow the 2008 UPC. See, http://www.nccusl.org/Act.aspx?title=Probate%20Code%20Amendments%20%282008%29

[107]UPC §3-709.

[108]UPC §3-711 (the personal representative acts as the trustee of the assets for the benefit of the estate); UPC §5-425; Article 2, Uniform Power of Attorney Act. http://www.law.upenn.edu/bll/archives/ulc/dpoaa/2008_final.htm.

[109]UPC §§3-715 and 5-425(25).

[110]Id.

[111]Microsoft Terms of Service ¶4. Your service account, associated accounts, and accounts from third parties. . . .You must keep your accounts and passwords confidential and not authorize any third party to access or use the service on your behalf, unless we provide an approved mechanism for that. . .(http://explore.live.com/microsoft-service-agreement?mkt=en-us accessed 12/30/2011).

[112]https://windowslivehelp.com/solution.aspx?solutionid=2aa89618-2244-4187-8383-39b5503587f5 accessed 3/9/2012.

See, discussion related to terms of service and accounts of deceased users for other service providers in IV.B., infra.

[113]See, UPC §1-201 General Definitions (41) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; . . .(45) “Sign” means, with present intent to authenticate or adopt a record other than a will: (A) to execute or adopt a tangible symbol; or (B) to attach to or logically associate with the record an electronic symbol, sound, or process.

National Conference of Commissioners on Uniform Laws, Annual Meeting 11/2008, http://www.law.upenn.edu/bll/archives/ulc/upc/2008amends.htm

[114]Conn. Gen. Stat. §45a-334a; and R.I. Gen. Laws §33-27-3.

[115]Ind. Code §29-1-13-1.1 and Okla. Stat. tit. 58, §269.

[116]Idaho Code §§15-3-715 and 15-5-424.

[117]See, Cal. Civ. Code §987(h)(2).

[118]26 U.S.C.S. §§2001(a), 2501(a)(1) and §2601.

[119]26 U.S.C.S. §2036(a) (transfers with a retained life estate) and §2038(a) (revocable transfers).

[120]See, 26 U.S.C.S. §2033. For purposes of the estate tax, the gross estate includes all property in which the decedent had an interest in property at death.

[121]26 U.S.C.S. §§2033 and 2512(a); 26 C.F.R. §20.2033-1(b).

[122]26 C.F.R. §20.2033-1(a). See, Twitter, The Twitter Rules-Spam and Abuse at http://support.twitter.com/articles/18311-the-twitter-rules accessed 3/9/2012; LinkedIn User Agreement, ¶7.B. at http://www.linkedin.com/static?key=user_agreement accessed 3/9/2012; Facebook, Pages Terms ¶7 at http://www.facebook.com/page_guidelines.php accessed 3/9/2012; Google, Terms of Service http://www.google.com/intl/en/policies/terms/ accessed 3/9/2012; Yahoo, Terms of Service 12 at http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html accessed 3/9/2012; YouTube Terms of Service ¶4D. http://www.youtube.com/t/terms accessed 3/9/2012.

[123]See, Salinger v. Random House, Inc., 811 F.2d 90 (2nd Cir. 1987) (Salinger successfully sought injunctive relief against the publication of his personal letters which were valued in excess of $500,000).

[124]Rev. Rul. 66-86, 1966-1 C.B. 216.

[125]26 U.S.C.S. §2037(a)(1) requires the inclusion of assets in the gross estate where ownership is transferred as a result of the owner’s death.

[126]If Microsoft’s procedure were incorporated into their terms of service there would be a stronger argument for a decedent’s right to transfer their account. Until it revised its terms of use on January 26, 2012, Microsoft’s terms of service referred to “a mechanism” that was not necessarily the equivalent to a contractual obligation. See, https://windowslivehelp.com/solution.aspx?solutionid=2aa89618-2244-4187-8383-39b5503587f5  (accessed 3/9/2012).

[127]¶27. General Information. 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. Yahoo Terms of Service (http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html accessed 3/9/2012)

[128]See, VI-VII., infra.

[129]See, notes 91-93, supra.

[130]Posting Content on Our Services. . .Except as otherwise provided in this TOS, you or the owner of any content that you post to our Services retain ownership of all rights, title, and interests in that content. America Online Terms of Service (http://legal.aol.com/terms-of-service/full-terms/ accessed on 3/9/2012).

[131]MATERIALS PROVIDED TO MICROSOFT OR POSTED AT ANY MICROSOFT WEB SITE. Microsoft does not claim ownership of the materials you provide to Microsoft (including feedback and suggestions) or post, upload, input or submit to any Services or its associated services for review by the general public, or by the members of any public or private community, (each a “Submission” and collectively “Submissions”) (http://explore.live.com/microsoft-service-agreement?mkt=en-us accessed 3/9/2012).

[133]¶9. CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE YAHOO! SERVICES. Yahoo! does not claim ownership of Content you submit or make available for inclusion on the Yahoo! Services. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services, you grant Yahoo! the following worldwide, royalty-free and non-exclusive license(s). . . . Yahoo Terms of Service (http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html accessed 3/9/2012).

[134]¶6. Proprietary Rights in Content on Myspace. 6.1 Myspace does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you transmit, submit, display or publish (“post”) on, through or in connection with the Myspace Services. After posting your Content on, through or in connection with the Myspace Services, you continue to retain any such rights that you may have in your Content, subject to the limited license herein. Myspace.com Terms of Use Agreement (http://www.myspace.com/Help/Terms?pm_cmp=ed_footer accessed 3/9/2012).

[135]¶2. Your Obligations. B. License and warranty for your submissions to LinkedIn. You own the information you provide LinkedIn under this Agreement, and may request its deletion at any time, unless you have shared information or content with others and they have not deleted it, or it was copied or stored by other users. (http://www.linkedin.com/static?key=user_agreement#pri-10 accessed 3/9/2012)

[136]Twitter gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software that is provided to you by Twitter as part of the Services. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Twitter, in the manner permitted by these Terms.

Your Rights. You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). . . .Twitter has an evolving set of rules for how ecosystem partners can interact with your content. These rules exist to enable an open ecosystem with your rights in mind. But what’s yours is yours – you own your Content (and your photos are part of that Content). (http://twitter.com/tos accessed on 3/9/2012).

[137]¶2. Sharing Your Content and Information. You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. (http://www.facebook.com/legal/terms?ref=pf accessed 3/9/2012).

[138]¶9. CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE YAHOO! SERVICES. Yahoo! does not claim ownership of Content you submit or make available for inclusion on the Yahoo! Services. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services, you grant Yahoo! the following worldwide, royalty-free and non-exclusive license(s). . . . Yahoo Terms of Service (http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html accessed 3/9/2012).

[139]¶2. Sharing Your Content and Information. (http://www.facebook.com/legal/terms?ref=pf accessed 3/9/2012).

[140]Your Rights. You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use. Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services. We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media. Twitter Terms of Service (http://twitter.com/tos accessed 3/9/2012).

[141]Your Content in our Services.  Some of our Services allow you to submit content. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours.

When you upload or otherwise submit content to our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. This license continues even if you stop using our Services (for example, for a business listing you have added to Google Maps). Some Services may offer you ways to access and remove content that has been provided to that Service. Also, in some of our Services, there are terms or settings that narrow the scope of our use of the content submitted in those Services. Make sure you have the necessary rights to grant us this license for any content that you submit to our Services. (http://www.google.com/intl/en/policies/terms/ accessed 3/9/2012)

[142]¶6.  Your Content and Conduct. C.  . . . The above licenses granted by you in video Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your videos from the Service. You understand and agree, however, that YouTube may retain, but not display, distribute, or perform, server copies of your videos that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable. YouTube Terms of Service (http://www.youtube.com/t/terms accessed on 3/9/2012).

[143]See, litigation related to former employee’s 17,000 Twitter followers (Phone Dog, L.L.C. v. Kravitz, Case No. 3:11-cv-03474-MEJ, U.S. District Court for the Northern District California).

[144]Modifying and Terminating our Services.  We are constantly changing and improving our Services. We may add or remove functionalities or features, and we may suspend or stop a Service altogether.  You can stop using our Services at any time, although we’ll be sorry to see you go. Google may also stop providing Services to you, or add or create new limits to our Services at any time.  We believe that you own your data and preserving your access to such data is important. If we discontinue a Service, where reasonably possible, we will give you reasonable advance notice and a chance to get information out of that Service. Our Warranties and Disclaimers. We provide our Services using a commercially reasonable level of skill and care and we hope that you will enjoy using them. But there are certain things that we don’t promise about our Services. OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS OR ADDITIONAL TERMS, NEITHER GOOGLE NOR ITS SUPPLIERS OR DISTRIBUTORS MAKE ANY SPECIFIC PROMISES ABOUT THE SERVICES. FOR EXAMPLE, WE DON’T MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES, THE SPECIFIC FUNCTION OF THE SERVICES, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE PROVIDE THE SERVICES “AS IS”.  SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES. (http://www.google.com/intl/en/policies/terms/ accessed 3/9/2012).

[145]¶17. Definitions. (8) By active registered user we mean a user who has logged into Facebook at least once in the previous 30 days. (http://www.facebook.com/legal/terms?ref=pf accessed 3/9/2012).

[146]¶2. Sharing Your Content and Information. (2) When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others). (http://www.facebook.com/legal/terms?ref=pf accessed 3/9/2012).

[147]¶4. Our Rights and Obligations. A. Services Availability. LinkedIn further reserves the right to withhold, remove and or discard any content available as part of your account, with or without notice if deemed by LinkedIn to be contrary to this Agreement. For avoidance of doubt, LinkedIn has no obligation to store, maintain or provide you a copy of any content that you or other Users provide when using the Services. (http://www.linkedin.com/static?key=user_agreement accessed 3/9/2012)

[148]¶13. GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that Yahoo! may establish general practices and limits concerning use of the Yahoo! Services, including without limitation the maximum number of days that email messages, message board postings or other uploaded Content will be retained by the Yahoo! Services, . . . .You agree that Yahoo! has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Yahoo! Services. You acknowledge that Yahoo! reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that Yahoo! reserves the right to modify these general practices and limits from time to time. Yahoo Terms of Service (http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html accessed 3/9/2012).

[149]Registering a User Name and Keeping Your Account Active. After we terminate or deactivate your account for inactivity, we have no obligation to retain, store, or provide you with any data, information, e-mail, or other content that you uploaded, stored, transferred, sent, mailed, received, forwarded, posted or otherwise provide to us (collectively “posted” or “post”) on the Services and may allow another user to register and use the username. We also have no obligation to remove any public data, content, or other information that you posted on a Service or reactivate your account. (http://legal.aol.com/terms-of-service/full-terms/ accessed 3/9/2012).

[150]¶6. Proprietary Rights in Content on Myspace.  6.7 Myspace reserves the right to limit the storage capacity of Content that you post on, through or in connection with the MySpace Services. Myspace.com Terms of Use Agreement (http://www.myspace.com/Help/Terms?pm_cmp=ed_footer accessed 3/9/2012).

[151]¶2. Term. Myspace reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including, without limitation, private messages, emails and instant messages (collectively, “messages”)) by you, or to deny, restrict, suspend, or terminate your access to all or any part of the Myspace Services at any time, for any or no reason, with or without prior notice or explanation, and without liability.  Myspace.com Terms of Use Agreement (http://www.myspace.com/Help/Terms?pm_cmp=ed_footer accessed 3/9/2012).

[152]The Services are Available “AS-IS”. Your access to and use of the Services or any Content is at your own risk. You understand and agree that the Services is provided to you on an “AS IS” and “AS AVAILABLE” basis. . . Twitter will not be responsible or liable for any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services, or any Content. You also agree that Twitter has no responsibility or liability for the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. (http://twitter.com/tos accessed on 3/9/2012)

[153]USE OF SERVICES. . . . Microsoft reserves the right to terminate your access to any or all of the Communication Services at any time, without notice, for any reason whatsoever; NOTICES REGARDING SOFTWARE, DOCUMENTS AND SERVICES AVAILABLE ON THIS WEB SITE.  IN NO EVENT SHALL MICROSOFT AND/OR ITS RESPECTIVE SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF SOFTWARE, DOCUMENTS, PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR INFORMATION AVAILABLE FROM THE SERVICES.

http://www.microsoft.com/about/legal/en/us/IntellectualProperty/Copyright/Default.aspx#E1  accessed 3/9/2012).

[154]Restrictions on Content and Use of the Services.  We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services and to terminate users or reclaim usernames. (http://twitter.com/tos accessed 3/9/2012).

[155]See, LinkedIn User Agreement, ¶7.B. (http://www.linkedin.com/static?key=user_agreement accessed 3/9/2012).

[156]¶14. Termination. If you violate the letter or spirit of this Statement, or otherwise create risk or possible legal exposure for us, we can stop providing all or part of Facebook to you. We will notify you by email or at the next time you attempt to access your account. You may also delete your account or disable your application at any time. (http://www.facebook.com/legal/terms?ref=pf accessed 3/9/2012).

[157]¶2. Term. Myspace expressly reserves the right to remove your profile and/or deny, restrict, suspend, or terminate your access to all or any part of the Myspace Services if Myspace determines, in its sole discretion, that you have violated this Agreement or pose a threat to Myspace, its employees, business partners, Users and/or the public. Myspace.com Terms of Use Agreement (http://www.myspace.com/Help/Terms?pm_cmp=ed_footer accessed 3/9/2012).

[158]¶8. Content/Activity Prohibited.  8.29  using the account, username, or password of another Member at any time or disclosing your password to any third party or permitting any third party to access your account; 8.30 selling or otherwise transferring your profile, your email address or URL. Myspace.com Terms of Use Agreement (http://www.myspace.com/Help/Terms?pm_cmp=ed_footer accessed 3/9/2012).

[159]¶3. YouTube Accounts. A. In order to access some features of the Service, you will have to create a YouTube or Google account. You may never use another’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify YouTube immediately of any breach of security or unauthorized use of your account. B. Although YouTube will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of YouTube or others due to such unauthorized use. YouTube Terms of Service ((http://www.youtube.com/t/terms accessed on 3/9/2012)

[160]Registering a Username and Keeping Your Account Active. Your username and account may be terminated if you do not sign on a Service with your username at least once every 90 days. If you are registered for fee-based or term-specific Services, we will not terminate your username or account unless they are subject to being terminated for some other reason. . .If you fail to remain active on a specific Service, we may deactivate your access and use of that Service. (http://legal.aol.com/terms-of-service/full-terms/ accessed 3/9/2012)

[161]¶15. TERMINATION Cause for such termination, limitation of access or suspension shall include, but not be limited to, (a) breaches or violations of the TOS or other incorporated agreements or guidelines, . . .(e) extended periods of inactivity. . . .Termination of your Yahoo! account includes any or all of the following: (a) removal of access to all or part of the offerings within the Yahoo! Services, (b) deletion of your password and all related information, files and content associated with or inside your account (or any part thereof), and (c) barring of further use of all or part of the Yahoo! Services. Yahoo Terms of Service (http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html accessed 3/9/2012)

[162]NO UNLAWFUL OR PROHIBITED USE.  As a condition of your use of the Services, you will not use the Services for any purpose that is unlawful or prohibited by these terms, conditions, and notices; USE OF SERVICES. . . . Microsoft reserves the right to terminate your access to any or all of the Communication Services at any time, without notice, for any reason whatsoever.

(http://www.microsoft.com/about/legal/en/us/IntellectualProperty/Copyright/Default.aspx#E1  accessed 3/9/2012).

[163]MEMBER ACCOUNT, PASSWORD, AND SECURITY.  If any of the Services requires you to open an account, you must complete the registration process by providing us with current, complete and accurate information as prompted by the applicable registration form. You also will choose a password and a user name. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify Microsoft immediately of any unauthorized use of your account or any other breach of security. Microsoft will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by Microsoft or another party due to someone else using your account or password. You may not use anyone else’s account at any time, without the permission of the account holder. (http://explore.live.com/microsoft-service-agreement?mkt=en-us accessed 3/9/2012).

But, see “Next of Kin” Procedure discussed in IV.B.ii., infra.

[164]Your Google Account.  You may need a Google Account in order to use some of our Services. You may create your own Google Account, or your Google Account may be assigned to you by an administrator, such as your employer or educational institution. If you are using a Google Account assigned to you by an administrator, different or additional terms may apply and your administrator may be able to access or disable your account. Google Terms of Service, effective March 1, 2012 (http://www.google.com/intl/en/policies/terms/ accessed 3/9/2012).

But, see Google’s “Two Part” process for accessing a decedent’s Gmail account discussed in IV.B.iii., infra.

[165]¶10. Linked In User’s Do’s and Don’ts. B. Don’t undertake the following: 7 Use or attempt to use another’s account without authorization from the Company, or create a false identity on LinkedIn; (http://www.linkedin.com/static?key=user_agreement#pri-10 accessed 3/9/2012)

[166]¶4. Registration and Account Security. (8) You will not share your password, (or in the case of developers, your secret key), let anyone else access your account, or do anything else that might jeopardize the security of your account. (9) You will not transfer your account (including any page or application you administer) to anyone without first getting our written permission.

(http://www.facebook.com/legal/terms?ref=pf accessed 3/9/2012).

[167]Basic Terms. You may use the Services only if you can form a binding contract with Twitter and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. (http://twitter.com/tos accessed on 3/9/2012)

[168]¶6. RESTRICTIONS ON USE.  YOU MAY NOT and will not allow any third party to (except to the extent required by local law): . . .; b. Obtain or attempt to obtain unauthorized access to the Services or the Yahoo! Network; Yahoo Global Communications: Additional Terms of Service for Yahoo! Mail and Yahoo! Messenger (http://info.yahoo.com/legal/us/yahoo/mail/en-us/ accessed 3/9/2012).

[169]¶27. General Information. 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. Yahoo Terms of Service (http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html accessed 3/9/2012)

[170]Using our Services. If you elect to store authentication information, such as a username and password, where others may access it, we are not responsible for any loss of personal data or other consequences if someone other than you uses that information to access our services. If you lose a device, such as a laptop, desktop, or smartphone, or a device is stolen containing your username and password, it is up to you to take all the steps necessary to protect yourself. (http://legal.aol.com/terms-of-service/full-terms/ accessed 3/9/2012)

[171]¶4. Password. When you sign up to become a Member, you will also be asked to choose a password. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the account, username, email address or password of another Member at any time or to disclose your password to any third party. Myspace.com Terms of Use Agreement (http://www.myspace.com/Help/Terms?pm_cmp=ed_footer accessed 3/9/2012).

[172]See notes 158 and 159, supra.

[174]What products does the Microsoft Next of Kin process support?

At this time, the Microsoft Next of Kin process supports only Windows Live Hotmail or MSN Hotmail accounts (email accounts ending in @hotmail.com, @live.com, @windowslive.com, or @msn.com). We do not provide support for SkyDrive, MSN Dial-up, or Xbox Live., https://windowslivehelp.com/solution.aspx?solutionid=2aa89618-2244-4187-8383-39b5503587f5 (accessed 3/9/2012)

[177]Microsoft Terms of Service ¶4.You must keep your accounts and passwords confidential and not authorize any third party to access or use the service on your behalf, unless we provide an approved mechanism for that. . .(http://explore.live.com/microsoft-service-agreement?mkt=en-us accessed 12/30/2011).

[181]¶13. Assignment. These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by YouTube without restriction.

YouTube Terms of Service ((http://www.youtube.com/t/terms accessed on 3/9/2012)

[182]¶3. YouTube Accounts. A. In order to access some features of the Service, you will have to create a YouTube or Google account. You may never use another’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify YouTube immediately of any breach of security or unauthorized use of your account. B. Although YouTube will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of YouTube or others due to such unauthorized use. YouTube Terms of Service ((http://www.youtube.com/t/terms accessed on 3/9/2012).

[183]¶1. Description of Service. Blogger is a web publishing service and optional hosting service (the “Service”). You will be responsible for all activities occurring under your username and for keeping your password secure. You understand and agree that the Service is provided to you on an AS IS and AS AVAILABLE basis. Google disclaims all responsibility and liability for the availability, timeliness, security or reliability of the Service or any other client software. Google also reserves the right to modify, suspend or discontinue the Service with or without notice at any time and without any liability to you. (http://www.blogger.com/terms.g accessed 3/1/2012).

[184]A LinkedIn account may be cancelled upon notification of the service that a user is deceased. See, https://help.linkedin.com/app/answers/detail/a_id/2842/kw/death%20of%20a%20member accessed 3/9/2012.

[185]¶9. General Terms. I.  Assignment and Delegation. You may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to you. We may also substitute, by way of unilateral novation, effective upon notice to you, LinkedIn Corporation for any third party that assumes our rights and obligations under this Agreement. (http://www.linkedin.com/static?key=user_agreement accessed 3/9/2012)

[186]¶2.Your Obligations.  D.Sign-In Credentials. You agree to: (1) Keep your password secure and confidential; (2) not permit others to use your account; (3) refrain from using other Users’ accounts; (4) refrain from selling, trading, or otherwise transferring your LinkedIn account to another party; and (5) refrain from charging anyone for access to any portion of LinkedIn, or any information therein. Further, you are responsible for anything that happens through your account until you close down your account or prove that your account security was compromised due to no fault of your own.  See also, ¶10.B.7. Access to another person’s account may be allowed if LinkedIn authorizes the access. (http://www.linkedin.com/static?key=user_agreement accessed 3/9/2012)

[187]¶3.D.Memorializing Accounts. If we learn that a User is deceased, we may memorialize the User’s account. In these cases we may restrict profile access, remove messaging functionality, and close an account if we receive a formal request from the User’s next of kin or other proper legal request to do so. (http://www.linkedin.com/static?key=privacy_policy accessed 3/9/2012)

[189]General Legal Terms. We may assign this contract at any time without notice to you. You may not assign this contact to anyone else. (http://legal.aol.com/terms-of-service/full-terms/ accessed 3/9/2012).

[190]See, Using our Services. (http://legal.aol.com/terms-of-service/full-terms/ accessed 3/9/2012)

[191]Under its help page, AOL provides instructions for a representative of the decedent to close the account. (http://help.aol.com/help/microsite.do?emd=displayKC&docType+kc&extranalld+11605 accessed 3/9/2012).

[192]Basic Terms. You may use the Services only if you can form a binding contract with Twitter and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. (http://twitter.com/tos accessed on 3/9/2012)

[194]See, ¶8.30 selling or otherwise transferring your profile, your email address or URL. Myspace.com Terms of Use Agreement (http://www.myspace.com/Help/Terms?pm_cmp=ed_footer accessed 3/9/2012).

[197]Facebook Pages Terms. ¶1. Any user may create a Page; however, only an authorized representative of the subject matter may administer the Page. Pages with names consisting solely of generic or descriptive terms will have their administrative rights removed. ¶2. Content posted to Pages is public information and is available to everyone. (http://www.facebook.com/page_guidelines.php accessed 3/9/2012).

[198]To report a deceased user’s death, see http://www.facebook.com/help/contact.php?show_form=deceased (accessed 3/9/2012).

[199]Note: A user should also inform this trusted person that they would be required to accept the respective eContract for those accounts that permit a third-party who has agreed to their terms of service to access the account.

[200]Under Part II of the UPC, a surviving spouse is entitled to an “Elective Share” in order to prevent the spouse from being completely disinherited.  The amount guaranteed to the surviving spouse is determined by the value of the decedent’s augmented estate.  Under §2-205, the value of the decedent’s “augmented estate” includes the value of “property” that pass to persons other than a surviving spouse.  According to §2-201, “property value” includes the value of those assets that pass under a beneficiary designation or outside the decedent’s will.  If the digital asset has no value, it would not be included as “property” within the augmented estate.

[201]UPC §3-104.

[202]UPC §3-703(b).

[203]UPC §§3-614 through 3-618.

[204]See, note 62, supra.  Additionally, it may make sense to include a statement under the Gramm-Leech-Bliley Act, 15 U.S.C.S. §6801, et seq.; Molly Wilkens, Privacy and Security During Life, Access After Death: Are They Mutually Exclusive?, 62 Hastings L.J. 1037 (2011).

[205]See, www.legacylocker.com, www.assetlock.net, www.chroniclesoflife.com, www.deceasedaccount.com, www.e-z-safe.com, www.entrustet.com, www.estateplusplus.com, www.executorsresource.com, www.lifeensured.com, www.mywebwill.com, www.myinternetdata.com, www.securesafe.com,

This too, however, has limitations because the terms of service may prevent access or consider the engagement of the third-party administrator a prohibited assignment by the account user.

[206]The Domain-based Authentication, Reporting and Conformance (“DMARC”) was founded by organizations to prevent and protect email users from “spam” messages by “using the well-known SPF and DKIM mechanisms. This means that senders will experience consistent authentication results for their messages at AOL, Gmail, Hotmail, Yahoo! and any other email receiver implementing DMARC. We hope this will encourage senders to more broadly authenticate their outbound email which can make email a more reliable way to communicate.” http://www.dmarc.org/ (accessed 2/11/2012).

[207]See, LinkedIn Verification of Death form at https://help.linkedin.com/app/answers/detail/a_id/2842/kw/death%20of%20a%20member (accessed 3/1/2012).

[208] See, U.S. Government Printing Office (“GPO”) Federal Digital System. (www.gpo.gov/fdsysinfo/aboutfdsys.htm accessed 2/21/2012)

[209]In deciding a federal estate tax case, the Supreme Court held that “state law creates legal interests and rights. The federal revenue acts designate what interests or rights, so created, shall be taxed.” Morgan v. Commissioner, 309 U.S. 78, 80 (1940).

[210]Note the differences in the type of authority granted and which digital assets are covered in Conn. Gen. Stat. §45a-334a, Idaho Code §§15-3-715 and 15-5-424, Ind. Code §29-1-13-1.1, Okla. Stat. tit. 58, §269 and R.I. Gen. Laws §33-27-3.

[211]Amazon and eBay state sales tax collection headaches that led to The Marketplace Fairness Act, S.1832, 112th Congress 1st Session (2011).

A contrary opinion on whether changes should be left to state or federal legislators can be found at Darrow and Ferrera, at 317-318, note 1 supra.

[212]Zippo Manufacturing Company v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (E.D. Penn. 1997); Lakin v. Prudential Securities, Inc., 348 F.3d 704 (8th Cir. 2003); Trintec Industries Inc. v. Pedre Promotional Products Inc., 395 F.3d 1275 (Fed.Cir. 2005).

[213]See, Gramm-Leech-Bliley, 15 U.S.C.S. §6801, et seq. Health Insurance Portability and Accessibility Act, 42 U.S.C.S. §1320d, et seq., Fair Credit Reporting Act, 15 U.S.C.S. §1681, et seq., Stored Communications Act, 18 U.S.C.S. §2701, et seq., and Family Education Rights Privacy Act, 20 U.S.C.S. §1232g.

[214]Contents of communications may not be disclosed under the Stored Communications Act pursuant to a civil subpoena. O’Grady v. Superior Court, 139 Cal.App.4th 1423, 1448 (Cal.App. 2006); Federal Trade Commission v. Netscape Communications Corp., 196 F.R.D. 559, 561 (N.D. Cal. 2000) (Congress could have specifically included discovery subpoenas in the statute had it meant to); In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606 (E.D. Va. 2008) (subpoena not enforced because it was not “consistent with the plain language of the Privacy Act because the exceptions enumerated in §2702(b) do not include civil discovery subpoenas.”); J.T. Shannon Lumber Co., Inc. v. Gilco Lumber Inc., 2008 WL 4755370 (N.D. Miss. 2008) (no exception to the for civil discovery); Viacom Intern. Inc. v. Youtube Inc., 253 F.R.D. 256 (S.D. N.Y. 2008) (§2702 does not have an exception for the disclosure of communications pursuant to civil discovery requests); Thayer v. Chiczewski, 2009 WL 2957317 (N.D. Ill. 2009) (third parties cannot be compelled to disclose electronic communications pursuant to a civil subpoena).

Note: Prohibiting access to a digital asset under civil subpoena nullifies an effective tool deceased users’ families had available to gain access to the contents of accounts.

[215]18 U.S.C.S. §2701(c)(1)-(3).

[216]Controversial bills to expand the obligations of service providers were presented in the House and Senate, but neither proceeded to a vote before the full Congress.  See, Protect IP Act (“PIPA”), S.968 112th Cong. 1st Sess. (2011) and Stop Online Piracy Act (“SOPA”), H.R.3261 112th Cong. 1st Sess. (2011).

[217]17 U.S.C.S. §512.

[218]P.L. 105-304, §502 (1998); 17 U.S.C.S. §1330.  See, Bonito Boats, Inc. v. Thunder Crafts Boats, Inc., 489 U.S. 141 (1989) (decision prompted Congress to adopt Chapter 13).

[219]17 U.S.C.S. §1320(a) which provide that the protected rights of an owner under chapter 13 vest in the designer, a legal representative of a deceased or incapacitated owner, and (b) these rights are transferable.

Vessel hull designer’s copyrights are limited by any protections conveyed upon designers under patent, trademark and common law. 17 U.S.C.S. §§1329 and 1330.

[220]See, 17 U.S.C.S. §204(a) regarding the transferability of a copyright.

[221]17 U.S.C.S. §106A.

[222]17 U.S.C.S. §106A(a).

[223]Cal. Civ. Code. §987; Mass. Gen. Laws ch. 231, §85S; NY CLS Art & Cult Affr §14.03.

[224]17 U.S.C.S. §106A(d)(1).

[225]17 U.S.C.S. §106(a)(2).

[226]17 U.S.C.S. §106A(a) Rights of attribution and integrity. Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art—(1) shall have the right. . .

[227]Quality King Distributors, Inc. v. L’anza Research Int’l, 523 U.S. 135 (1998) at fn. 21, quoting 2 P. Goldstein, Copyright §5.12, p. 5:225 (2nd Ed. 1996) (§106A encompasses aspects of the moral rights guaranteed by Article 6bis of the Berne Convention, “but effectively gives these rights a narrow subject matter and scope”).

[228]17 U.S.C.S. §201(d)(1) allowing the transfer of property “by will or. . .intestate succession.”

[229]15 U.S.C.S. §45.   See, FTC v. Verity International, Ltd., 443 F.3d 48 (2nd Cir. 2006) (consumer fraud action against online billing company for misleading users about charges from adult-website).

[230]15 U.S.C.S. §105(b).

[231]Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, P.L. 108-107 (2003).

[232]15 U.S.C.S. §7706(a).  See, 16 C.F.R. §316 for the FTC’s final rules under the CAN-SPAM Act.

[233]15 U.S.C.S. §§6501-6506.

[234]15 U.S.C.S. §§41-58.  See, National Federation of the Blind v. FTC, 420 F.3d 331 (4th Cir. 2005), cert. den. 547 U.S. 1128 (2006) (FTC’s authority to make telemarketing rules upheld);

[235]In the Matter of Google Inc., FTC File No. 102 3136 (2011). (FTC action against Google for violating privacy rights of its users with the release of Google “Buzz” platform) http://www.ftc.gov/os/caselist/1023136/index.shtm; In the Matter of Facebook Inc., FTC File No. 092 3184 (2009). (FTC action against Facebook for violating consumer’s privacy rights by deceptively notifying users that their information was safeguarded). http://www.ftc.gov/os/caselist/0923184/index.shtm

[236]1994 Pub. Law No. 103-414.

[237]Federal Communications Commission Miscellaneous Rules Relating to Common Carriers, 47 C.F.R. §§64.2500-64.2502. See, Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010) (FCC did not have the ancillary authority to regulate a service provider’s management practices under the Communications Act, 47 U.S.C.S. §153).

[238]47 U.S.C.S. §1001–

(4) The term “electronic messaging services” means software-based services that enable the sharing of data, images, sound, writing, or other information among computing devices controlled by the senders or recipients of messages.

(6) The term “information services”—

(A) means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications; and

(B) includes—

(i) a service that permits a customer to retrieve stored information from, or file information for storage in, information storage facilities;

(ii) electronic publishing; and

(iii) electronic messaging services.

[239]Members of Congress have introduced a bill to limit the authority of the FCC. See, The Internet Freedom Act, H.R. 96 112th Congress 1st Session (2011-2012), a bill that seeks to prohibit the FCC from further regulating the Internet, other than regulations established under CALEA.

[240]See, note 215, supra.

[241]18 U.S.C.S. §2703(e).

[242]17 U.S.C.S. §512.

[243]47 U.S.C.S. §230(c)(1).

[244]This portion of the article is specifically directed to changes under the UPC.  Due to the fact that the UPC has not been adopted by all 50 states, the recommendations made by the National Commissioners of Uniform Laws to state legislators remain influential and are considered by all state legislators in their legislative processes.

[245]See, notes 113-115, supra.

[246]See, Conn. Gen. Stat. §45a-334a, Idaho Code §§15-3-715 and 15-5-424, Ind. Code §29-1-13-1.1, Okla. Stat. tit. 58, §269 and R.I. Gen. Laws §33-27-3.

[247] See, Idaho Code §15-5-424.

[248]Uniform Probate Code (2009), National Conference on Uniform State Laws, Chicago, Illinois. http://www.nccusl.org/Act.aspx?title=Probate%20Code

[249]UPC §3-1201.

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