Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Saturday, May 5, 2012

Article On Protecting Your Online Accounts Post-Mortem

Noam KutlerNoam A. Kutler (Associate in Government Enforcement, K&L Gates) recently published an article entitled, Protecting Your Online You: A New Approach to Handling Your Online Persona After Death, 26 Berkeley Tech. L.J. 1641 (2011). The abstract of this article is available below:

People create online personas through email, social networking, and virtual world services. Upon signing up for one of these services, a person enters into a contractual agreement governing the terms of use. These agreements include limitations on what will happen to his account after he dies. The conditions governing what happens to the account after the creator dies vary widely, which gives rise to a situation where it is nearly impossible to know how all of one’s digital assets will be handled after death. Due to the increased use of these services, the lack of clarity in what happens to one’s online persona after death is becoming a greater problem.

This Note proposes treating one’s online persona as part of one’s estate and handling it in a similar manner as other assets, which can be bequeathed to a designated person. An exception to this general probate treatment, however, arises when a person’s digital assets are left unresolved in his will. In much the same way that past love letters from a deceased husband offer a window into his life, a person’s e-mail, social network postings, and other digital artifacts should also be available after death and the solution proposed here makes that a more likely reality while still protecting the creator’s potential privacy interest. Such a system will result in the fulfillment of the digital creator’s wishes, better guarantees of privacy, and the assurance of a more equitable and better defined legal system for addressing one’s online persona after death.

Special thanks to Naomi Cahn (John Theodore Fey Research Professor of Law, George Washington University School of Law) for bringing this article to my attention.


Articles, Current Affairs, Estate Planning - Generally, Web/Tech, Wills | Permalink

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