Thursday, April 16, 2015
In a Chapter 11 reorganization of CTLI, LLC, social media accounts became the core of the dispute. CTLI had been doing business as Tactical Firearm and incurred a debt to purchase a building so the business could expand to include an indoor firing range in Katy, Texas. The Debtor was ordered to release a Facebook and Twitter account to the creditor, but the owner argued that the accounts were personal and not business property.
In In re: CTLI, LLC, Chapter 11, Debtor,the U.S. Bankruptcy Court, S.D. Texas, Houston Division held that the accounts in question were business property and that a business' social media accounts are included in the company's bankruptcy estate. The court further found that the required transfer of the accounts did not violate privacy rights.
Special thanks to Joseph Jacobson (Law Offices of Joseph Jacobson, Dallas, Texas) for bringing this case to my attention.
Tuesday, April 14, 2015
What if you could have "eternal digital life"? This was made possible by the start-up company Intellitar, which created a service allowing customers to generate digital avatars of themselves that loved ones could interact with long after the persons’ death. “Customers uploaded a photo of themselves to Intellitar’s ‘Virtual Eternity’ website, took a personality test, provided a voice sample and then trained their avatars’ ‘brains’—an artificial-intelligence engine—by feeding it stories, memories and photos.”
The company was not successful and shut down in 2012. According co-founder and former CEO of Intellitar, Don Davidson, the company’s failure was because of an expensive legal dispute. One other company, Eterni.me, is working on a similar service but the technology is “still in its infancy.”
See Kashmir Hill, This Start-Up Promised 10,000 People Eternal Digital Life—Then It Died, Fusion, Apr. 9, 2015.
Friday, April 10, 2015
In order to use this feature, users must identify their relationships on their profile. Scrapbooks can only be created for children that are listed under a user’s “Family and Relationships” section. Parents have the ability to co-own a scrapbook with the partner identified in their relationship status.
This new feature reflects an important decision that parents must make when it comes to their child’s digital footprints. Children whose parents create digital scrapbooks not only inherit a digital identity, but they also inherit a digital identity within Facebook.
See Priya Kumar, Facebook’s New Baby-Photo Feature Lets Children Inherit a Digital Identity, Slate, Apr. 6, 2015.
Wednesday, April 8, 2015
A Florida bill, SB 102, is making its way through Senate committee's with one more to pass in before hitting the senate floor. The bill would give a fiduciary access and control of digital assets. The bill has raised similar privacy concerns by critics as other similar ones considered in other states.
See Garin Flowers, Bill Would Let Trustee Control Digital Assets, WTSP, Apr. 6, 2015.
Monday, April 6, 2015
A bill in the Illinois General Assembly would treat individuals’ social media and other online accounts equivalent to physical assets after death. Senate Bill 1376 would give a trustee appointed by a court access to the accounts to settle the estate. However, tech companies such as Yahoo and Facebook say they are concerned with privacy issues surrounding the proposal.
Senator Michael Hastings is leading a group of lawmakers in trying to determine what happens to a person’s digital data after death in the absence of a will. Hastings said the proposal is no different than what current law allows with physical assets. “Looking at somebody’s Dropbox account is no different than going through grandma’s cupboard to settle her will,” said Hastings. “Grandma may have written a letter back in the day that was kind of crazy, but Dropbox is the same thing as a file cabinet for some people today.”
See Seth A. Richardson, Bill Would Treat Deceased’s Online Accounts Like Physical Assets, The State Journal Register, Apr. 5, 2015.
When Louise Palmer’s 19-year-old daughter Becky passed away from a brain tumor, Louise continued to access her Facebook account to reconnect with her daughter. “[T]o be able to go on [to Facebook] and read not only what people have put on her wall, but private messages that people had sent as well. It was reassuring me that she wasn’t going to be forgotten.”
Shortly after Becky’s death, Facebook locked or “memorialized” her account. Louise wrote to the company, expressing her desire to read the messages. Facebook responded and explained that because of their company policy for deceased users, they cannot make changes to the profile or provide login information to the account.
Louise’s frustration is not uncommon. “People are just not reading the terms and conditions, and what we are seeing is a real increase in disputes between competing family members and the service providers.” YouGov research found that 52 percent of individuals said that no one would be able to access their online accounts if anything should happen. Thus, it is now more important than ever that people leave clear instructions regarding what should happen to their social media and other online accounts after death. Having a list of online accounts will make it easier for family members, and allow the deceased’s wishes to be fulfilled.
See Clive Coleman, How Do We Protect Our Digital Legacy After Death, BBC News, Apr. 6, 2015.
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, April 1, 2015
Civil Liberty Organizations Express Privacy Concerns Regarding Uniform Fiduciary Access to Digital Assets Act
As I have previously discussed, the Uniform Law Commission created the Uniform Fiduciary Access to Digital Assets Act, which grants fiduciaries access to an individual's digital assets. Four civil liberty organizations, Center for Democracy & Technology (CDT), American Civil Liberties Union (ACLU), Electronic Frontier Foundation (EFF), and Consumer Action, wrote an open and joint letter expressing their concerns raised by the uniform act. Provided below is an excerpt from the letter:
The Uniform Law Commission (ULC) has proposed model legislation that grants a personal representative or other fiduciary access to digital content associated with an individual’s estate or assets,1 which could include a wide range of online content, bank accounts, photo albums, email accounts, text messages, voicemail, social media profiles, health and fitness data, and dating messages. As civil liberties organizations dedicated to protecting individuals’ privacy and autonomy, we write to express our concerns with the model bill and to urge state legislatures to reject legislation based on its provisions.
Wednesday, March 25, 2015
Competing legislation is battling it out in state legislatures that represents the opposing interests of the tech industry and those advocating for uniform legislation on fiduciaries' access to digital assets of incapacitated and deceased individuals. During the drafting phase of the Uniform Fiduciary Access to Digital Assets Act, attempts were made to collaborate with tech industry representatives, such as Facebook, but were unsuccessful. Much of the tech industry is troubled by the Act, which overrides terms of service agreements of providers.
The battle between privacy and accessibility continues to wage through the states. The Uniform Act has only passed in Delaware, and the alternative Act representing tech industry interests, the Privacy Expectation Afterlife and Choices Act, has passed only in Virginia though it has not yet been signed into law.
See John DeBruyn, The Battle of the States Over Access to Digital Assets by Fiduciaries, Steve Leimberg's Estate Planning Newsletter #2292, March 24, 2015.
Special thanks to Steve Oshins (Oshins & Associates LLC) for bringing this case to my attention.
Saturday, March 21, 2015
Jason E. Havens (Property & Probate Magazine, Technology--Probate Editor) recently published a column entitled, Cloudy Choices: Desktops, Laptops, or Mobile Devices? from the Technology Probate section, 29 Probate & Property No. 2, 49 (March/April 2015). Provided below is an excerpt from the article:
During the past 10 years, radical changes have occurred in the personal computer market. Many of those changes originated in the mobile computing arena, some traceable to what used to be known as a cellular telephone. Now a so-called smartphone can easily process everything from documents to spreadsheets to presentations, along with crisp photographs, videos, and Internet browsing.
Some trust and estate lawyers are intrigued by the history of these devices, chronicled in biographies and films about the late Steve Jobs or Bill Gates, but most want to know which devices will assist them in producing work. This column will survey some popular products and platforms that this editor has used.
Monday, March 16, 2015
Montana could become one of the first states to answer the long-standing question: what happens to our Facebook posts, Tweets and other digital records when we die? A bill heard Thursday morning in the House Judiciary Committee would give your survivors access to your data, unless you leave specific instructions to the contrary.
Currently, individuals can leave behind instructions as to who can access your data, or even request that it be deleted upon death. However, it is unclear about what happens when a person leaves no instructions, and that is what this law attempts to clear up. The bill would allow the personal representative of the deceased person to access the person’s online accounts, to retrieve photographs, documents or anything else.
At least one social network is fighting back against the proposal. Dan Sachs, an associate manager for estate policy with Facebook, says the act of dying does not constitute giving consent to let other people see your digital data.
As of now, eight states have passed laws allowing survivors to access a person’s email, social media, etc. Nevada allows survivors to close accounts, but not access what is inside of them.
See Steve Jess, Montana Bill Would Give Survivors Access to Your Digital Data After You Die, Montana Public Radio, March 12, 2015.
Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.