Digital Property and the Laws of Inheritance
Feb 22, 2005 5:00 AM PT
The advent of a new technology often requires building a whole new set of rules to govern its use. Occasionally, the technology's use easily falls under a set of rules already in place.
Either way, there is often a gap between the widespread use of the technology and the cementing of policies and procedures that will cover most circumstances under which the technology is used. The rules evolve as the technology evolves.
Public Relations Nightmare
Dennis Kennedy, a technology attorney based in St. Louis and a blogger on the legal issues of technology, said that when he heard about the case he could understand both sides.
"Lawyers like to say, 'Let's be very cautious here, let's wait until we get a court order.' But maybe Yahoo should have thought about whether the negative publicity is worth the protection you might have gotten from the legal risk," he told TechNewsWorld.
In this instance, while the law for letters may have prescribed waiting for probate and the legal authority to access the letters, the truth of the matter is that most often, surviving family members would just go into the closet or onto the hard drive and get the letters they felt they had a right to see. The law would be none the wiser and the family would have the letters.
However, once an intermediary is placed between the mail and the direct heir or heirs who feels they have a right to it, the letter of the law must be adhered to, Kennedy said. That law requires that the only person who can access the deceased person's property is the executor of the estate once the estate has been probated, a process that can take days or years depending on many factors, including whether or not relatives are fighting over anything and if the property in question has monetary value.
This brings up the issue of time. How long will a dormant e-mail account remain available to the estate? Will time-sensitive e-mails go waiting? That answer may depend on whether it is a free account or one its owner had paid for. What happens when the e-mail account is one in which the user received bills, including the bill that pays for the e-mail account?
E-mail is just one form of intellectual property that may be hosted by a third party, Kennedy said. Photos, blogs, Web sites and address books may not just have sentimental value, but could also be worth money.
Some of what this comes down to is plain estate planning.
"If it is not publicly accessible (such as business records stored on an off-site commercial storage site), the contract with the storage site owner ought to provide that the customer's executor or attorney have the right of access," Villanova law professor James Maule wrote on his blog, when prompted by questions from TechNewsWorld. "The username and password need to be made available by the individual to his or her attorney or executor."
The issues would be different if the person were incorporated and for material that is posted on the Web.
Maule wrote: "For publicly accessible material, the question isn't one of privacy (after all, it's out there for the world to see), but a matter of ensuring that the value of the material, if any, is protected. ... If the publicly accessible material has value, then the owner needs to wrap this within the overall planning for the continuation or dissolution (and sale) of the business. The executor or trustee needs to be given the username and password. And the contract with the ISP or other provider needs to permit the executor or trustee to access the site."
Security vs. Posterity
Of course, as Kennedy points out, for security reasons, passwords should not be kept in a list handy for all to read. But they should be available to the executor of the estate. This will also help avoid another problem Kennedy brought up.
"More and more social relationships are people we know on the Internet," he told TechNewsWorld. "If someone dies, there are a lot of people who should be notified. The fact that someone has died is very meaningful and a paper address book may not have closest friends. Those people who are known mainly through e-mail or online may wonder what happened. By the time things get sorted out, the funeral is long over, and it's too late."
However, if a password list is part of the estate planning, that issue would be alleviated.
Have an inventory of URLs, Web content, e-mail passwords and any other property an heir will need access to. Although Yahoo's policy does clearly state that the account will be terminated upon death, if the password was known to someone else, that problem could have been avoided.
"As a practical matter, the ISP or provider won't know that it is the executor and not the now-deceased owner, who has accessed the site," Maule wrote. "It would only become known if a hosting fee were involved. The first clue would come when any payment for the site is paid with a check from the estate or a transfer from the estate's account rather than with the owner's credit card."
In the case of Web-based, or as Maule pointed out, FTP or other non-Web but Internet based material, the rule seems to be the same as it would be for any other property: Plan ahead.