Sunday, September 14, 2014
Lynda Wray Black (University of Memphis - Cecil C. Humphreys School of Law) recently published an article entitled, The Birth of a Parent: Defining Parentage for Lenders of Genetic Material, Nebraska Law Review, Vol. 92, 2014. Provided below is the abstract from SSRN:
With the advances in assisted reproductive technology, the scholarly quest for an all-inclusive legal definition of parentage has proliferated. All too often this quest becomes muddled in Constitutional tangles, in shifting mores, in quagmires of evolving and inconsistent legal parameters on what constitutes a “family”, and in the perceived need to reconcile conflicting state laws governing marriage, adoption and surrogacy contracts. This article suggests a return to the basics. Parents are born with the birth of a child. Notwithstanding the scientific breakthroughs in reproductive technology and the more inclusive modern understanding of the family unit, every child begins with two (and only two) suppliers of genetic material and one (and only one) gestational carrier. Thus, the only logically clear starting point for a legal definition of parentage begins with these three claim-holders to parentage. Once the examination of the concept of parentage is disentangled from the complications of related, but logically independent, legal questions, it becomes clear that unless and until the rights and obligations of parentage are either (voluntarily) contractually waived or (involuntarily) judicially or statutorily terminated, the law must recognize as parent any individual (regardless of his or her gender, sexual orientation or marital status) who is biologically related to a child.
Thursday, September 11, 2014
The Anderson family recently lost their nineteen-year-old son and is now seeking access to his text messages, e-mails, and Facebook account to find out more about the moments leading up to his tragic death. The family is hoping to get 20,000 signatures to an online petition asking the Minnesota State Legislature to pass a law clearly authorizing fiduciary access to a deceased person’s digital data.
This is an unfortunate scenario that illustrates the importance of planning ahead for your digital property. It is essential to arrange for full access to your data to keep estate administration costs down, to provide for a smooth estate administration, and to ensure that none of your valuable or significant digital property is overlooked. Contact your estate-planning attorney to include plans for your digital property in your estate plan. Make sure this plan specifies your wishes about your property and appoints a fiduciary to act on your behalf with respect to your digital property, during incapacity and after death. Furthermore, ensure that your estate planning documents authorize the companies that hold your electronic data to release that data to your fiduciaries during your incapacity and after your death, which is important for the Stored Communications Act’s privacy protections.
See Jim Lamm, Video Clip: Family Wants Access to Son’s Digital Data After Death, Digital Passing, Sept. 10, 2014.
Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.
Sunday, August 24, 2014
Daniel C. Perrone (London Fischer LLP) recently published an article entitled, Breaking the Ice: Expanding the Class of “Issue” to Include Posthumously Conceived Children, 27 J. Civ. Rts. & Econ. Dev. 369-392 (2014). Provided below is a portion of the article’s introduction:
In New York, some innocent children, namely, posthumously conceived children, are suffering the consequences of the state legislature's failure to sync the law with technology. Advancements in biotechnology have enabled people to conceive genetically related children, even after their own death. These children, however, face the dire consequence of being denied inheritance rights, referred to herein as a "class gift," merely because of the circumstances surrounding their birth. Admittedly, posthumously conceived children do not come into the world the way the majority of children do, but they are children, who should be granted the same rights, benefits and privileges that other children enjoy.
Saturday, August 23, 2014
Last week Delaware Governor Jack Markell signed into law legislation permitting Delawarean families the right to the digital assets of loved ones who are incapacitated or deceased, the same way they would be given access to physical documents. Yet many people do not realize that our Twitter, Facebook, and email accounts are not our only online assets.
The new Delaware law raises the complexities of how to deal with the accounts that house our e-book collections, music and video libraries, or even game purchases, and whether they can be transferred to family and friends after death. While the bill broadly states digital assets include “data, audio, video, images, sounds, computer source codes, computer programs, software, software licenses,” the law also states these assets can be controlled by the deceased’s trustees only to the extent allowed by the original service’s end user license agreement (EULA).
I have previously stated that the Delaware statute does not override this feature of Amazon’s, or most, EULAs, which are protected by other forms of federal law. The bill is not designed to change an asset you could not transfer into one you can.
Although tech companies have been dealing with some of the issues surrounding the accounts of the deceased, they have not specifically addressed the effect of EULAs on the fate of any products purchased with those accounts after someone has passed. For now, estate planners are coming up with creative solutions. Some planners suggest setting up a trust and using it to purchase digital assets. In naming themselves and children as trust beneficiaries, they can pass down e-books or music without breaking any ban on third party transfers.
See Ariel Bogle, Who Owns Your iTunes Library After Death? Slate, Aug. 22, 2014.
Special thanks to Howard M. Zaritsky for bringing this article to my attention.
Friday, August 22, 2014
Kathleen Farro (Independent) recently published an article entitled, The ‘Digital First Sale Doctrine’: A Necessary Piece of the Digital Estate Planning Puzzle, (July 15, 2014). Provided below is the abstract from SSRN:
As technology advances, the aspects of our lives that are played out in the digital realm, both personal and professional, are ever-increasing. We conduct our banking online, we communicate with friends, family and business associates via email and social networks, and we create original, creative works on internet-based applications. Our creative work, professional work, and practical communications that were once limited to oral communication and paper records are now captured, conveyed, and stored digitally. Trading tangible media for the digital realm has become commonplace. Some changes are as simple as the box of photographs stored in the closet that are being replaced by expansive online libraries of digital photographs. On a grander economic scale, for example, is the marketability of a celebrity persona that was once measured by his or her ability to promote products in a newspaper print ad or on a television commercial. Now, the number of people accessing that celebrity’s life, opinions and preferences in the digital realm can have an equal or greater financial effect.
While this evolution can have many advantages in our every day lives – making thinking, doing, communicating, and working - easier, quicker, more efficient, and less expensive, it can also jeopardize things that we may take for granted in our purely "tangible" life. The digital age may decrease our actual, human interactions and compromise our privacy. It may reduce what may be considered "our property" in the tangible world to something owned and controlled by others when carried out in the digital realm. Within the conversion to a digital world, our property rights, and thus our ability to convey and devise those to others, may, quite literally, get lost in translation.
The property rights we most frequently give up to carry on life in the digital realm are those that are carried out and promulgated within a framework of copyright-protected material. For example: email, Facebook, Twitter, and various "gaming" activities are copyright-protected.
For estate planners, these facts present hurdles to carrying out the wishes of those who desire to transfer some of their digital "property" to their loved ones, friends, or others either by devise or within an inter vivos trust. For example, a man may spend years building an iTunes library of music. At $0.99 to $1.29 a song, and likely more in the future, he may invest thousands of dollars over the years in this collection. Upon his death or disability, he may wish to transfer this library to his children. The current law does not allow this; the point at which he himself is unable to use the library, there is no way in which any party can lawfully utilize that song library.
This paper will examine the property rights individuals generally hold in copyrighted material and digital copyrighted material. It provides a thorough explanation of the First Sale Doctrine as applied to tangible media and the limitations on its applicability in the digital realm. It then goes on to explain Congress’s first attempt at incorporating digital media into the First Sale Doctrine in 1998 – what conclusions it drew and why Congress declined to update the doctrine. Between technological advancements, court cases in the U.S. and overseas, and various other legal principles and practices, there are now substantial policy bases for revisiting a "digital" First Sale Doctrine. The implementation of a digital First Sale Doctrine would have far-reaching effects; however, for our purposes, this doctrine would at least provide individuals with assurance that their digital property can be preserved to pass along to others.
Friday, August 15, 2014
Digital asset protection is a growing concern for individuals and planners. Last week, Missouri amended their state constitution to expressly protect “electronic communications and data” from search and seizure the same as other property. However, it is still unclear what the implications of this constitutional addition will be.
See Eugene Volokh, Missouri Voters Amend Constitution to Expressly Protect “Electronic Communications and Data”, The Washington Post, Aug. 6, 2014.
Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.
Thursday, August 14, 2014
On Tuesday, Delaware Governor Jack Markell signed legislation authorizing fiduciaries to access and control digital assets and accounts of those they represent. The law recognizes that more people are piloting more of their lives online, which can pose challenges when a person dies or becomes incapacitated. The new law permits fiduciaries to access email, social media, financial management, health care and other digital accounts.
Developed by the Uniform Law Commission, this law is the first of its kind in the country.
See Associated Press, Delaware Fiduciaries Gain Access to Digital Assets, The Washington Post, Aug. 12, 2014.
Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.
Wednesday, August 6, 2014
David Horton (University of California, Davis, School of Law) recently published an article entitled, The Stored Communications Act and Digital Assets, Vanderbilt Law Review, Vol. 67 (2014). Provided below is the abstract from SSRN:
The story has become all too familiar. Someone dies, and her loved ones request the contents of her text, email, or social media accounts. Perhaps they wish to preserve this vibrant electronic slice of the decedent’s life. Perhaps they are compelled in their grieving to sift through the minutiae of the decedent’s final days. Or perhaps they are merely trying to fulfill their duty as trustee, executor, or administrator to pay the decedent’s bills and inventory her property. However, the decedent’s Internet Service Provider (“ISP”) — be it Facebook, Yahoo!, or Microsoft — refuses to comply.
As Naomi Cahn explains in her outstanding contribution to the Vanderbilt Law Review’s Symposium on the Role of Federal Law in Private Wealth Transfer, these ISPs are afraid of a byzantine federal statute from 1986: the Stored Communications Act (“SCA”). Section 2701 of the SCA criminalizes unauthorized access to electronic communications: a seemingly nasty glitch for fiduciaries attempting to marshal a decedent’s digital assets. Section 2702 bars ISPs from disclosing a customer’s private data without her “lawful consent.” Citing the fact that the SCA predates the rise of email — let alone the phenomenon of a valuable Twitter account — Professor Cahn argues that the statute should not govern fiduciaries. Alternatively, assuming that the SCA does apply, Professor Cahn discusses various ways around this obstacle, including the Uniform Law Commission’s draft Fiduciary Access to Digital Assets Act (“FADA”), which would clarify that fiduciaries generally enjoy the “authorization”’ and “lawful consent” necessary to acquire a decedent’s online accounts.
This short invited reply takes a different route to the same destination. It begins by offering a reading of the SCA that diverges slightly from Professor Cahn’s. However, it uses that discussion to echo her critique of the SCA and bolster the case for the FADA.
Thursday, July 24, 2014
Last week, the Uniform Law Commission drafted the Uniform Fiduciary Access to Digital Assets Act, which is a model law that would let relatives access the social media accounts of the deceased. Because so many of us live more of our lives online, more of what used to be tangible turns digital. “Where you used to have a shoebox full of family photos, now those photos are often posted to a website.”
The goal of the Uniform Fiduciary Access to Digital Assets aims to make the digital shoebox equally accessible to family members. “This is the concept of ‘media neutrality’ . . . . The law gives the executor of your estate access to digital assets in the same way he had access to your tangible assets in the old world. It doesn’t matter if they’re on paper or on a website.”
The ULC’s proposed law would override terms-of-service agreements that specify the user alone can only access his or her account.
Yet companies such as Facebook see a downside to the proposed law. “The bill takes no account of minimizing intrusions into the privacy of third parties who communicated with the deceased . . . This would include highly confidential communications from third parties who are still alive---doctors, psychiatrists, and clergy.”
See Molly Roberts, A Plan To Untangle Our Digital Lives After We’re Gone, All Tech Considered, July 23, 2014.
As I have previously discussed, the Uniform Law Commission adopted the Uniform Fiduciary Access to Digital Assets Act, which is a model code that aims to address the problem of digital assets disappearing into cyber space after the account holder dies. States will now be faced with the decision of whether to adopt the model provisions, including the idea of “media neutrality”, which allows the executor of the estate access to the digital assets.
However, for some, including those connected to high profile social media sites, this increased accessibility can be an invasion of privacy, both for the deceased account holder and third party individuals whose messages are saved to the account. Many private companies are now offering services that allow the account holder to set up what emails, pictures, and documents are to be saved or deleted after the account is deactivated or becomes inactive. If the model code is enacted in a state, then the person’s intention to make their account private after they die may be overridden and the account made public.
See Molly Roberts, A Plan to Untangle Our Digital Lives After We’re Gone, NPR, July 23, 2014.