On Friday, February 15, 2013, I presented a ninety–minute seminar titled “Will You Have a Digital Afterlife?” with Professor Christina L. Kunz, Michael J. McGuire, and Damien A. Riehl at the 2013 Miami Law Review Symposium on Social Media & the Law in Coral Gables, Florida. Our panel discussed how computers, electronically stored information, online accounts, and other digital property have changed the way we interact with people and how we transact business, and this flood of digital property is also changing how fiduciaries and family members administer an estate after a person’s incapacity or death.
Our panel discussed the four main obstacles for fiduciaries and family members trying to access electronically stored information, online accounts (e–mail, social networking accounts like Facebook and Google+, etc.), and other digital property. These four main obstacles are: (1) passwords; (2) encryption; (3) federal and state criminal laws that penalize “unauthorized access” to computers and data (including the Computer Fraud and Abuse Act); and (4) federal and state data privacy laws (including the Stored Communications Act).
Our panel reported on current state legislative efforts regarding fiduciary access to digital property and the Uniform Law Commission’s Drafting Committee that is working on this topic. We also discussed intellectual property law issues, including a current case addressing the issue of whether a person can sell a “used” digital music file, book, or movie purchased from Apple’s iTunes store without violating copyright law. And our panel discussed estate planning tips to plan ahead for digital property during incapacity and after death as well as tips to help identify an incapacitated or deceased person’s online accounts and software tools to help gain access to electronically stored information that may be protected by a password on the person’s smartphone, iPad, or computer.