Monday, May 5, 2014
Samantha D. Haworth (University of Miami Law Review; J.D. Candidate 2014) recently published an article entitled, Laying Your Online Self to Rest: Evaluating the Uniform Fiduciary Access to Digital Assets Act, 68 U. Miami L. Rev. 535 (Winter 2014). Provided below is her introduction:
On July 27, 2012, a teenage girl named Alison Atkins passed away from colon disease. Her family turned to her online accounts for consolation and answers. The family had to circumvent the teen's computer password and use her computer's automatic log-in function to access Alison's Twitter, Facebook, Tumblr, and email accounts. Alison's online accounts contained conflicting characterizations of her life--happy family pictures and dark, private journals. Whether Alison wanted her online life viewed after her death was unknown. Nevertheless, the family's control over these accounts was fleeting, as the accounts eventually logged out or got deleted, and the contents were lost forever.
When Internet users die without planning for their digital lives, families and estate executors are left to guess the users' wishes. Families may violate terms of service agreements and battle with Internet service providers to access digital property that the deceased never wanted others to access. Discussing the Atkins family, journalist Geoffrey A. Fowler wrote, “[T]aking hold of Alison Atkins's digital afterlife forced her family to tread a line between celebrating her, and invading her privacy. In the process, her family discovered some dark journals Alison clearly meant to conceal. ‘She had passwords for a reason.”’
Handling digital assets after death presents numerous practical, legal, and moral problems. Accounting for all of one's assets and rounding up the requisite passwords comprise the first step to managing a digital estate. Professors Gerry W. Beyer and Naomi Cahn suggest drafting a separate document to supplement a will with log-in information to protect the testator's privacy because probated wills become public record. Beyer and Cahn suggest designating how each asset should be handled, such as which assets should be deleted and which ones should be kept and by whom. This approach is helpful in accounting for all of one's property, but it does not fully address how a family member or personal representative of an estate can implement these wishes legally.
This Note will explore the world of digital assets and how legislation can ensure the proper disposition of decedents' online selves. Part I explores the different kinds of digital assets and how courts deal with these assets in multiple types of litigation. Part II discusses the legislative solutions currently in place and under consideration for handling digital assets at death. Part III analyzes the Proposed Uniform Fiduciary Access to Digital Assets Act and discusses its innovations and shortfalls. Part IV examines what types of control fiduciaries should be allowed to exercise over digital assets. Finally, this Note will conclude with recommendations on how to best improve the Uniform Act.