With the growth of the Internet, people are both creating and storing more content online. Facebook has taken over as the most popular social media site with over 1.5 billion users and five new profiles created every second. In addition to social media, websites like Dropbox and LinkedIn are geared toward helping people develop their professional network and store valuable company documents. Since almost everything can be stored online and accessed through the cloud with a username and password, the need for tangible paper files is almost obsolete.
But who owns these online “digital assets” when the user dies?
Digital assets do not pass under traditional property law because they are not included in the definition of property in most state statutes. Further, even if the state property codes did define “digital assets,” property law governing the enforceability of a will conflicts with contract law governing the online service providers’ Terms of Service. Even though most people fail to read the terms of service and simply click agree, the user is still contractually bound by these provisions, which override anything written in a person’s will. Also, virtually every online service providers’ Terms of Service agreement is silent on who owns the user’s content at death. In fact, a common theme in these agreements is that death does not grant others access to the account information. Therefore, even if a user identifies and includes his digital accounts in his will, the service provider is not obliged to grant anyone access to the account, including the executor. Without access to the account, many service providers treat the account as inactive after a certain period of time and terminate the contents, not taking into consideration the user’s wishes.
What should be done?
Legal scholars all discuss the problem of digital assets and how there is no solution or law thus far as to how to plan for their transfer. However, there are very few who offer any potential solutions. One solution is to name a digital executor, who is in charge of distributing all of the assets. The idea is that the digital executor is given the passwords on all digital accounts at the user’s death and he will be able to distribute the assets accordingly. However, in my research I have found that this is not a good option since the terms of service prohibit executors from accessing a user’s account after his death (either because the account automatically terminates or a third party can only view the user’s content, not access his account). Another solution posed is to write down all usernames and passwords and give the inventory to a trusted friend or family member. The problem with this is that the document could be easily lost or misplaced, and the user may even change his mind on who he wants to have this information. Another problem is that the user could be required to change his password for security reasons and forget to update the document, leaving the family member locked out after his death. Further, even if someone knows the password to an account and is able to access the information, he is not the owner of the content. Granting access to another does not legally give him title to the property, in fact, it may even have criminal penalties under Section 33.02 of the Texas Penal Code. Therefore, if there is valuable information stored inside the account, either financial or sentimental, the content could be lost depending on the service provider’s terms of service. I have come up with a novel solution that I am confident will solve the problem of transferring ownership of digital assets at death. The concept is called the E-Box, and is a mandatory field under the terms of service that requires users to fill out their preference of what happens to their account when they die. The user must complete this field before he will be able to create an account. This is the main focus of my paper, and without giving more away, I look forward to explaining my approach in my presentation on Wednesday.