One of the topics that generated several questions and additional discussion during my presentation at the 45th Annual Heckerling Institute on Estate Planning on January 12, 2011, was data retention rules for Internet Service Providers (ISPs) and online accounts. For example, how soon does Google delete the e–mails in your Gmail account after you are incapacitated or deceased? Is the data “actually deleted,” or could the government compel production of the data from the Internet service provider in a criminal investigation?
On January 25, 2011, the Crime, Terrorism, and Homeland Security Subcommittee of the House Committee on the Judiciary held a hearing related to these issues. The hearing was titled “Data Retention as a Tool for Investigating Internet Child Pornography and Other Internet Crimes,” and it has implications beyond just criminal investigations. From an individual’s perspective, the data retention policies of Internet service providers impact personal privacy. From an Internet service provider’s perspective, having longer mandatory data retention requirements imposed by the government increases the costs of doing business because of the significant additional data storage (and backup) requirements.
Jason M. Weinstein, Deputy Assistant Attorney General for the Department of Justice, and others testified at the hearings. Hearing documentation will be available at the House Committee on the Judiciary Web site.
Here are a few links to stories and quotes from the hearing:
- CBS News: DOJ Wants Mandatory Data Retention
- ABC News: House Considers Mandating Internet Data Retention For Crime Solving
- Ars Technica: When ISPs Delete Data, Child Pornographers Can’t Be Found
- Electronic Frontier Foundation: House Subcommittee Revives Mandatory Data Retention Debate…With a Surprise Attack on EFF
- Computerworld: DOJ seeks mandatory data retention requirement for ISPs
What does this mean for estate planning and administration? After reading the frustrations of law enforcement quoted in the Ars Tehnica article (emphasizing that Internet service providers may have very short user data retention policies), it underscores the importance of planning ahead for passwords, online accounts, and digital property. It also underscores the importance of acting quickly to find, access, and protect digital property in a guardianship, conservatorship, probate estate, or trust administration. The free e–mail accounts, free social networking accounts, free Web page hosting accounts, free photo–sharing accounts, and other online accounts don’t last forever. Whether the data has financial value or merely sentimental value, it’s important to act quickly to preserve digital property in an administration.