Digital Legacies: Who Owns Your Online Life After Death?

HEATHER ANTOINE
Antoine Law Group, APC

INTRODUCTION

If you are reluctant to talk about death, this is a good time to get over it. We have reached a point where most people understand the importance of having a will or trust. But, most have never thought about what happens to their online presence after death. The average person has twenty to twenty-five digital accounts and that number is growing.¹ Eighty five percent of people around the world send and receive emails and 62 percent communicate through social networking sites.² Seventy-one percent of people in the United States utilize a Facebook account.³ The magnitude of data collected and maintained on the Internet is staggering. But beyond interesting statistics and fodder for big data enthusiasts, why should any of this matter?

In 2011, security technology company McAfee conducted the first digital assets survey and the results were shocking. The average American Internet user valued his or her digital assets at approximately $55,000.⁴ Globally, the average was approximately $37,000.⁵ While McAfee included the emotional value placed by users on their assets, these accounts have financial value. How does a beneficiary, representative, fiduciary, or trustee access these properties? Do they have a right to access? And are there laws governing digital legacies? Accessing a decedent’s digital legacy may violate copyright law, privacy rights, trade secret law, and the federal Stored Communications Act.