Thursday, June 26, 2014
Sandi Varnado (Loyola University New Orleans College of Law) recently published an article entitled, Your Digital Footprint Left Behind at Death: An Illustration of Technology Leaving the Law Behind, 74 Louisiana Law Review. 719 (2014). Provided below is the abstract from SSRN:
Death has become more complicated than it used to be, in large part due to the digital age. Americans, particularly younger ones, spend a substantial portion of their waking hours on some sort of electronic device, with a large portion of that time spent online, and many predict the continuation of this trend. Yet, the law, still set in the pen and ink era, has failed to keep pace with technology in many contexts, including one’s digital footprint at death.
One’s digital footprint consists of the sum of his digital assets, and the average American’s digital footprint is valued at nearly $55,000. However, the majority of Americans have not planned for their digital footprint upon their death, due to neglect, concern over sharing information, underestimation of the value of the digital footprint, and/or anxiety over the magnitude of the digital footprint. As such, any estate plan is rendered incomplete, potentially leaving digital assets “adrift in cyberspace.”
The interests of various groups of people lead to competing policies on whether access to a decedent’s digital footprint should be allowed or denied. The law does not help. Louisiana, like most states, has no specific legislation in place to govern a decedent’s digital footprint, leaving traditional legal principles to govern technological advancements that did not exist and were probably not even anticipated at the time the laws in question were written. Thus far, the problems have not reached epic proportions, but that day is coming, and eventually, the digital footprint issue will become a serious problem.
This Article assesses the various interests triggered by the digital footprint issue, including efficient estate administration, the privacy interests of the decedent and those with whom he communicated, the interests of those left behind, the interests of online service providers that contracted with a decedent when he created his digital assets, and society. It also addresses the Gordian knot of overlapping and complicated legal analyses that the digital footprint issue triggers. The Article additionally details the Louisiana approach to the digital footprint issue, which is, as of now, only estate planning, and analyzes the various potential resolutions to the issue, highlighting the deficiencies of each. Finally, the Article proposes that both federal and state action is required to effectively handle the multitude of legal issues triggered by the digital footprint and provides a detailed scheme for both levels to do so.