by Webnme2 on Sep 6th 2010
What happens to your online identity, online property, online friends, and online accounts when you die?
Disclaimer: These articles are not intended as legal advice. For legal advice you may wish to consult your planning and estates attorney. The information here may be helpful to you in asking questions and making the right plan for your assets.
This is the fifth of a five part series of articles on digital death and your internet afterlife.
Legal & Other Issues
Who has authority to access your accounts after death
The question is who has legal authority to access your online accounts after you have passed away. Depending on the jurisdiction, lawful access may be limited to:
- A Court or its appointed probate administrator
- The Executor of your estate
- An Internet Service Provider based on its Terms of Service agreement
- A Trusted Agent based on a contract Trust or Will
You should consult your attorney to determine who can lawfully access your online accounts and make disposition plans accordingly. If a person without legal authority attempts to access your online accounts on your behalf, there are some legal issues that may be worth considering:
Risk of Computer Fraud and Abuse Act violation in some cases – 10 USC 1030 most likely applies to online accounts where the service provider is engaged in interstate commerce. This would make it a felony crime to intentionally access a computer without authorization to obtain information from any protected computer if the conduct involves interstate or foreign communication. In this case the issue would be in intentionally accessing the computers of the online service provider without authorization.
Authority to access you online accounts may be limited to authority granted by law (court ordered access as part of a probate proceeding) and by the online service provider’s terms of service, which may or not allow a friend designated by you to use your accounts after your passing. If neither condition is operative; e.g., there is no legal authority to access your accounts, the person accessing online your accounts could be subject to criminal sanctions.
Risk of trespass action in common law – Even if the criminal statute does not apply, a person accessing your online accounts without legal authorization may also be at risk of being subject to a lawsuit for trespass under common law in most jurisdictions. This means that the casual designation of a friend to go clean up your online accounts is probably inadequate.
Risk of violations of state law regarding probate – Most jurisdictions have laws that strictly regulate the disposition of a deceased’s estate and place administration of that estate in the hands of a probate court. The court generally will take actions to protect the estate including actions to prevent access to safe deposit boxes and other property storage during probate proceedings. Individual actions to distribute property outside of the probate proceedings without leave of the court may result in court intervention with sanctions against that individual.
It is therefore important to consult your attorney before making plans for how your online accounts and properties will be handled in the event of your death. Your attorney can advise you when a disposition is covered by the jurisdiction’s probate law and whether or not court authorization is required to allow access to online content.
Example: Deceased had a collection of thousands of photographs stored in an online service. The heirs of the estate contend that that these photographs are of commercial quality with a resell value that is substantial. A friend designated by the deceased has been given a password to access these photographs and download them to give to friends and family without any restriction on redistribution. The heirs contend that unlimited distribution could make the photographs public domain and destroy their value.
That should give you an idea of the sticky kinds of situations where what seemed at first glance to just be a set of digital files may well have value making it subject to disposition by the appropriate probate court and also bringing the disposition under the Computer Fraud and Abuse Act (loss to one or more persons during any one-year period aggregating at least $5,000 in value).
In addition any online property that is considered a non probate asset may also be subject to an escrow of the sales proceeds until such matters can be resolved.
Security of information and currency
It is important to keep any information you wish to share upon death both current and secure. You should periodically review any information about your online life to assure that what you have designated to pass on to others on your death is up-to-date and valid. Similarly, you should assure that any information you are writing down about your accounts and online identities is protected against unauthorized access and improper disclosure that could frustrate your plans.
As a practical matter there are many encryption products available that can be used to encrypt the files on your computer including email storage files such as .pst files. This can help avoid a person with physical access to your computer from snooping before or after you pass on. Similarly the data in your encrypted files can become unavailable to anyone after your death if you do not choose to share the password or authentication that allows decryption. This may allow you to have some assurance that your most private information remains private or at least very difficult to access.
Data storage in online accounts is another matter. As a rule of thumb, you should not store any emails or documents online that you do not want anyone else to see, unless the storage is designed to be limited solely to you or your designee, fully encrypted, and with safeguards against unauthorized access that include two factor authentication (smart card, RSI device, or electronic key like those used by PayPal). Password protected accounts are not a guarantee against unauthorized access as it is relatively easy to crack passwords.
If you do make a list of accounts and passwords, do not store this list on a computer. Any person with physical access to your computer can boot it with a Linux CD and copy the file with your accounts and passwords. Similarly, if your computer has been hacked, the attacker could potentially access all of your most critical information by getting this file. Some may argue that if the file is separately encrypted and run in a virtual machine that is not internet connected, it may be safe. However, unless you have a lot of computer expertise, it is better to keep your list of accounts and passwords in a writing that can be locked in a safe or placed in secure storage like a safe deposit box.
Consult attorney for planning
While it is important to address the disposition of all aspects of your online persona, you should understand that just because something is online doesn’t mean that it isn’t subject to laws regarding after death disposition. Whether or not something you own or control needs to be addressed in a trust or a will is a question for your attorney who can provide you advice on the laws that pertain to the jurisdiction where you live. Consulting with your attorney at this stage can help assure that your desires and intentions are not later frustrated by legal issues.
Considerations Concerning Executors and Trusted Agents
In the past, most people have designated a close relative as their executor in their wills. Frequently, this was a spouse or child. Depending on one’s online activities, an individual may not want to have a relative reviewing their email or other documents after death. In such a case care should be taken in selecting an executor in one’s will and coordinated with the attorney handling the will to make sure the designated person meets all of the requirements of the jurisdiction to be an executor. For example many jurisdictions require an executor to live in the same state as the deceased, such that an internet friend across the country would be ineligible to act as an executor.
You may also want to have a conversation with your attorney about using a trusted agent using a durable power of attorney to handle your online accounts in the event you are not able to do so. A trusted agent with a durable power of attorney can, for example, handle your affairs when you are incapacitated. In most jurisdictions death automatically cancels a “power of attorney” so the device is not a substitute for a will or a trust to manage one’s affairs.