digital assets:a path to fiduciary access- fall 2014
TRANSCRIPT
DIGITAL ASSETS:
A PATH TO FIDUCIARY
ACCESS
HOWARD H. COLLENS
GALLOWAY AND COLLENS, PLLC
What happens when a person
becomes incapacitated or dies?
Imagine If…
Charles Dickens had drafted The Mystery
of Edwin Drood using Google Docs and
had a stroke before publishing…
Imagine If…
Janis Joplin had uploaded her original
recording of Me and Bobby McGee to
Soundcloud before she died …
Access to this
content would be
challenging, if not
impossible, without
a Fiduciary Access
to Digital Assets
law
What are Digital Assets?
Digital assets come in a variety of forms, and are constantly
changing, along with technology and social trends.
An individual may have a property ownership interest in an
asset, or merely a license.
The term “digital assets” means, but is not limited to, files,
including but not limited to, emails, documents, images,
audio, video, and similar digital files which currently exist
or may exist as technology develops or such comparable
items as technology develops, stored on digital devices,
including, but not limited to, desktops, laptops, tablets,
peripherals, storage devices, mobile telephones, smart phones,
and any similar digital device which currently exists or may exist
as technology develops or such comparable items as
technology develops, regardless of the ownership of the
physical device upon which the digital asset is stored.
Excerpt from: The Elder Law Report, Vol. XXV, Number 1
Categories of Digital Assets
Personal
Stored on computers, smart phones, or other devices, or are uploaded to a Web site or digital service
Photographs, videos, emails, and music playlist
Social Media
May involve photos, videos and other electronic files stored on these accounts
Financial
Online banking, online bill-paying activities
Online accounts with no connection to a brick-and-mortar establishment (Amazon, eBay, PayPal and E*TRADE, BitCoin)
Business
Varies by types of business and extent of its computer or Internet associated activities, which may include blogs, domain names, credit card and financial data
Homestuck is a webcomic written, illustrated and animated by Andrew Hussie, and is the fourth overall
webcomic published on MS paint adventures.The series centers on a group of teenagers who unwittingly
bring about the beginning of the end of the world through the installation of a beta copy of an upcoming
computer game.
The comic uses a combination of static images, animated gifs, instant message logs, and animations and
games made with adobe flash. It has been noted for its considerable length—6,851 pages and over
750,000 words as of October 16, 2013.
The site has over 600,000 unique visitors daily.
On September 4, 2012, Andrew Hussie announced a Kickstarter to raise funds to develop a homestuck
video game with a (then-unannounced) game studio. Development began in 2013, with the finished
product expected in 2014. The project had raised "more than $275,000 in hours". more than 80% of the
$700,000 goal was pledged in the first day. the game reached the full $700,000 of funding in fewer than 32
hours. The Kickstarter eventually raised $2,485,506, making it the "fifth game on kickstarter to pull
in a full seven figures" and the third highest funded video game in Kickstarter history at the time.
FROM WIKIPEDIA
Provide Access
Create a document and note if the property is personal
or has monetary value
Examples of note
Excerpt from: The Trust Advisor
Provide Instructions:
If you want a site to continue, for example if you have a
website or blog, you need to leave instructions for keeping
it up or having someone take it over and continue it.
If a site is currently producing or could produce revenue (e-
books, photography, videos, blogs), make sure your
successor knows this.
If there are things on your computer or hard drive that you
want to pass on (scanned family photos, ancestry research,
a book you have been writing), put them in a “Do Not
Delete” folder and include it on your inventory list.
Excerpt from: Estate Planning for Digital Assets and Social Media
Inventory Checklist
• Make sure you include everything from your computer,
other devices, and the “virtual world” (i.e. cloud,
internet)
• All email accounts
• All social websites you participate in
• Financial and commerce accounts
• Make a simple spreadsheet with passwords to access
assets
Digital Assets Inventory
Asset Access Wishes
Name Contents Location Username Password Instructions Recipient
Who is in Charge?
After you inventory your digital assets, you must decide who to give the access to in the event of your death or disability.
Make sure you indicate whether you want your digital executor to archive your content, share your content with others, or delete your content (and/or secure privacy of some content which may be harmful).
Make sure to include any special instructions (Think sensitive and/or embarrassing content).
Where Should I Note My Intent?
Powers of Attorney
Sample language: Electronic and Social Media. To access any and all
of my online accounts; to obtain, use or change any of my usernames
and/or passwords to any of my online accounts; to manage, add, delete,
modify, curate, archive, maintain, and increase access or limit access to
any of my online content; to transfer ownership rights and to maintain,
modify, delete, or cancel any of my online accounts. Such powers shall
apply to all of my social media accounts, including but not limited to
Facebook, Twitter, LinkedIn, corporate affinity and points programs,
banking and financial institution on-line access points, any and all data
and photo archiving sites, blogs and websites of mine whether I am
maintaining such accounts in my individual name, through a business,
through a pseudonym or anonymously.
Where Should I Note My Intent?
Last Will and Testament
Sample Language: Electronic and Social Media. To access any
and all of my online accounts; to obtain, use or change any of my
usernames and/or passwords to any of my online accounts; to
manage, add, delete, modify, curate, archive, maintain, and increase
access or limit access to any of my online content; to transfer
ownership rights and to maintain, modify, delete, or cancel any of my
online accounts. Such powers shall apply to all of my social media
accounts, including but not limited to Facebook, Twitter, LinkedIn,
corporate affinity and points programs, banking and financial
institution on-line access points, any and all data and photo
archiving sites, blogs and websites of mine whether I am maintaining
such accounts in my individual name, through a business, through a
pseudonym or anonymously.
Where Should I Note My Intent?
Revocable Living Trust
Sample Language: Electronic and Social Media. To access any
and all of Settlor’s online accounts; to obtain, use or change any of
Settlor’s usernames and/or passwords to any of Settlor’s online
accounts; to manage, add, delete, modify, curate, archive, maintain,
and increase access or limit access to any of Settlor’s online
content; to transfer ownership rights and to maintain, modify, delete,
or cancel any of Settlor’s online accounts. Such powers shall apply
to all of Settlor’s social media accounts, including but not limited to
Facebook, Twitter, LinkedIn, corporate affinity and points programs,
banking and financial institution on-line access points, any and all
data and photo archiving sites, blogs and websites of Settlor’s
whether Settlor is maintaining such accounts in Settlor’s individual
name, through a business, through a pseudonym or anonymously.
Where Should I Note My Intent?
General Assignment
Sample Language: To the extent possible this
assignment shall also act as delivery of all of my social media
accounts, including but not limited to Facebook, Twitter, LinkedIn,
any and all data and photo archiving sites, blogs and websites of
mine whether I am maintaining such accounts in my individual
name, through a pseudonym or anonymously.
Incorporating Digital Estate Planning
into Your Practice
To help the process, a questionnaire for the client to
list all digital assets and the value of those assets
Discuss if any of the assets have financial value
Keep record of all passwords and profiles
There are websites specifically designed to
release account information after death to
designated beneficiaries (PasswordBox.com or
AssetLock.net)
Suggest clients protect significant data with strong
encryption
Memorialize the account
“We will memorialize the Facebook account of a deceased person when we receive a valid
request. We try to prevent references to memorialized accounts from appearing on
Facebook in ways that may be upsetting to the person's friends and family, and we also take
measures to protect the privacy of the deceased person by securing the account.
Please keep in mind that we cannot provide login information for a memorialized
account. It is always a violation of our policies to log into another person's account.”
Memorial accounts can never be logged into again
Ask to have profile removed or deleted
“We will process certain special requests for verified immediate family members, including
requests to remove their loved one's account. This will completely remove the profile and all
associated content from Facebook, so no one can view it.”
Need to submit
The deceased's birth certificate
The deceased's death certificate
Proof of authority under local law that you are the lawful representative of the
deceased or his/her estate
From: Facebook
“In the event of the death of a Twitter user, we can work with a person authorized to act on the
behalf of the estate or with a verified immediate family member of the deceased to have an
account deactivated.
In order for us to process an account deactivation, please provide us with all of the following
information:
The username of the deceased user's Twitter account (e.g., @username or
twitter.com/username)
A copy of the deceased user’s death certificate
A copy of your government-issued ID (e.g., driver’s license)
A signed statement including:
Your first and last name
Your email address
Your current contact information
Your relationship to the deceased user or their estate
Action requested (e.g., ‘please deactivate the Twitter account’)
A brief description of the details that evidence this account belongs to the
deceased, if the name on the account does not match the name on death
certificate.
A link to an online obituary or a copy of the obituary from a local newspaper
(optional)”
From Twitter: How to Contact Twitter About a Deceased User
“Please send us the documentation by fax or mail to the following address:
Twitter, Inc.
c/o: Trust & Safety
1355 Market St., Suite 900
San Francisco, CA 94103
Fax : 1-415-865-5405”
*Please note: We are unable to provide login information for the
account to anyone regardless of his or her relationship to the
deceased.*
From Twitter: How to Contact Twitter About a Deceased User
“Unfortunately, there may be a time when you come across the profile of a
colleague, classmate, or loved one who has passed away. If this happens,
we can close that person's account and remove their profile on your
behalf.
We'll need to know the member's name, the company they worked at
most recently, your relationship to them, and get a link to their profile. It's
also very helpful if you can provide us with the member's email address so
we can find and verify their account.”
There is an online form to complete.
From: Linked In
iTunes
Customers own a license to use digital files
Apple grants “nontransferable” rights to use content
Limits use of files to Apple devices used by the account holder
Digital music downloads do not work the same way physical content does
Restrictions even when alive to prevent person from lending, sharing or burning music to a CD
Section B of iTunes terms of service agreement says “iTunes is the provider of the Service, which permits you to purchase or rent a license for digital content ("iTunes Products") for end user use only under the terms and conditions set forth in this Agreement.”
Could ownership by a Trust defeat this problem?
From: iTunes
Google Inactive Account Manager
Can be set up through Google Settings
Lets Google know what to do with some or all Google
related accounts after a specified period of inactivity
Services that can be controlled: +1s; Blogger;
Contacts and Circles; Drive; Gmail; Google+ Profiles,
Pages and Streams; Picasa Web Albums; Google
Voice and YouTube
Google sends a warning text and email before action
is taken
Can have Google delete the accounts
What about items bought on Google Play?
The State of the Law Is In Flux
In matters of incapacity and post death, the Probate laws (and in certain cases in Michigan, the Mental Health Code) will control who can access digital assets
Overwhelmingly, the law has been silent on this issue
Digital companies have created terms of service agreement to begin to address the management of digital property after incapacity and death
No one really reads the terms of service agreements
Only eight states have passed legislation regarding access to digital assets (Delaware, Oklahoma, Idaho, Rhode Island, Indiana, Virginia, Nevada and Connecticut, who was the first in 2005)
In 2011, the Uniform Law Commission established
the Fiduciary Access to Digital Assets Committee
to draft a free-standing act that will vest fiduciaries
with the authority to manage and distribute digital
assets, copy or delete digital assets, and access
digital assets
The Committee has met since that time and in July
2014 the ULC adopted a final version of a Uniform
Fiduciary Access to Digital Assets Act (UFADAA)
The UFADAA:
Gives Account Holder control over whether
digital assets should be preserved,
distributed or destroyed
Authorizes access to digital assets that
would not violate the Federal Stored
Communications Act, 18 USC 2701 and
Computer Fraud and Abuse Act, 18 USC
1030
The UFADAA:
If widely adopted, provides consistency
throughout the country
Currently, there is a hodge-podge
approach
Authorizes access by:
Agent under Power of Attorney
Conservator
Personal Representative
Trustee
The UFADAA:
Requires that fiduciaries provide proof of
authority in the form of a certified
document
Gives Custodians of digital assets
immunity for relying on a fiduciary’s
apparent authority
Addresses Impairment of Contract and
Public Policy
Under UFADAA:
Personal Representative/Trustee are “opt-out”
May Access Digital Assets Unless
Otherwise Provided in Writing
Conservator is “opt-in”
May Access Digital Assets Only With
Authority from Court
Agent under Power of Attorney is mixed
Access to Catalogue of Electronic
Communications is “opt-out”, Content is
“opt-in”
Michigan and FADA
There are currently bills pending in the Michigan
House (HB 5366-5370) and Senate (SB 293)
Timing for action is uncertain
Michigan FADA should improve on UFADAA by
adopting broader definition of Fiduciary to include:
Guardian of the Person/Guardian of the Estate
Special Fiduciaries
Howard H. Collens
Galloway and Collens, PLLC
26075 Woodward Ave, Suite 200
Huntington Woods, Michigan 48070
248.545.2500
GallowayCollens.com
Twitter: @howardcollens