The size (and relative importance) of our electronic foot print is growing every day. Whether it is our pictures or files we download to the Cloud, our images or comments on Social Media, or our networking tools we join to boost our careers. With relative ease, we download an app or join a service, click a few boxes, and we have instant access to a new tool in the virtual world. Generally, one of those “clicks” was at the bottom of long worded “user agreement” that although we said we read, we probably did not. But what harm could result as “everyone is doing it”?
Increasingly we are becoming aware of potential harms such as privacy, security, surrender of ownership of content, and for purposes of this article, agreed access restrictions. Most, if not every agreement, says “this agreement is with you, and no one else, and we will not willingly let anyone else access your account.” This sounds pretty good until we become incapacitated or die. Imagine the family being deprived the family photos, or the parents of a murder victim not being able to remove the former boyfriend’s (now murderer’s) image from their late daughter’s Facebook page. These realities have called into question the “fairness” of “user agreements”, but courts have consistently found the law to be on the side of service providers.
Of course if you had the passwords, and you could access an account before the password expires or before the account is otherwise flagged, you could probably sneak in and take or delete what you wanted. Of course you would be doing so contrary to the “user agreement” and the Federal and State laws.
Fortunately, legislatures, including the Indiana General Assembly, are catching up to the technological changes. Effective July 1, 2016, Indiana adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). This Act allows Indiana residents to “opt in” to allow a fiduciary to access their digital assets during incapacity or death. What is more important, the Industry (including major players Facebook and Google) have agreed that, in exchange for their “user agreements” not being regarded as contracts of adhesion, they will honor the fiduciary appointments of their users to access their digital assets.
While there is little doubt that some legal wrangling will continue as the multiple states, growing list of service providers, and the Federal Government all continue to weigh in, for the first time it appears there are some logical steps to control your digital footprint. First, inventory your digital assets to memorialize important assets, their locations, and maintain your digital access information in a secure state. Second, utilize any “on-line tools” created by your service providers to designate your preferences for access to your accounts after your death or during incapacity. Third, update your Durable Power of Attorney and Will and/or Trust to specifically grant your fiduciaries the authority to access your digital assets.
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