Thursday, May 30, 2013

Protect Your Digital Assets

If, God forbid, something happened to you tomorrow and you are no longer alive or (even worse) you were permanently incapacitated . . . who knows the passwords for your online accounts with Facebook, Twitter, Tumblr, or your blog?  Say, your family has an idea what your password would be for your e-mail accounts.  Do you necessarily want them to read your e-mails?  Or, would you rather your e-mail account be deleted all together?  These are very serious questions that, lately, many people are grappling with.

You should be asking yourself: Who in your family have the permission to access your accounts and perhaps shut those accounts down?  Who has possession of your content?  Now what if you are blogging or have a website that gains income through advertising or affiliate links?  What if content created by you . . . a video, a blog post, a meme . . . goes viral. What type of value would this activity have and what kind of asset could it become for your family?  In other words, if you are not around who owns the copyrights, and thus the money to that creation?  

Digital Assets and who owns them after we die is a new problem that has arisen in the last 15 years -- and you should be paying attention to this!

If you are online -- providing, creating and sharing content -- you (my dear) have Digital Assets and you should make sure your family or your loved one and trusted friend have access to these assets should something happen to you.  Indeed Digital Assets are part of your Estate and courts are making decisions about your online accounts everyday now.

"Confusing . . . online user agreements and state and federal laws can restrict Internet users' ability to transfer their online accounts to loved ones after their death and prevent families for retrieving information stored in the digital realm."  
Protect Digital Assets After Your Death - Kiplnger May 2013
 Don't be like most people and dismiss your digital assets as insignificant or unimportant.  Instead, understand the value of your assets (the world and the courts see them as viable assets believe me) and that these assets can be passed along to benefit your family.

What are digital assets?  

Simply defined, digital assets are "an individual's electronic possession: e-mails, digital photos, videos, tweets, songs, e-books, websites, programs, applications"

Here's a list of digital assets I can think of off the top of my head:

  • Family photos or digital photos you've taken and stored
  • Videos you've created
  • Video game characters with virtual points/tools/weapons acquired through hours of playing
  • Digital Music library you've paid for and collected
  • Domains names you own
  • Websites you've created
  • Affiliate programs and money gained from them
  • Advertising on website and the money gained from them
  • Blogs you have created
  • Content you have created and placed on blogs, social media sites and websites
  • Podcasts and and internet radio broadcasts you are involved in
  • e-books created
  • e-books purchased and stored
  • Social media accounts
  • apps owned and apps created
  • e-mails authored
  • graphics and memes created

How Should I Protect Myself and My Digital Assets?

Lawyers would love, love, love you to do nothing or even talk to them about digital assets so they can charge for services in creating a "Digital Trust" and other such things.  But there are simple things you can do that does not involve attorney's fees and other fees.  However, if you have significant digital assets such as: domain names that are worth thousands of dollars, or graphics/memes that have gone viral or apps that you have developed that supply you with royalty checks each year -- you should definitely talk to your estate planner and consider a digital trust for the benefit of you and your family.

So, if you are an average guy like me.  Here are the steps you can take to protect yourself and your digital assets:

1.  Figure out who is electronically savvy enough to take care of your digital assets and name this person your Digital Executor. This person will be in your will and any executive directive you establish.

2.  List your assets (all your accounts), passwords, pins and security questions/answers.  Create both a digital file (password-protected document) and a hard copy file (sealed in an envelope).  Place both in two different locations (of course).  Let key people (namely your digital executor) know the existence of these files and the location of these files.

3.  In a separate document as a Digital Directive, give full instruction on what the Digital Executor should do with these accounts.  Delete them, memorialize them, give them to family members to manage, or designate them to continue with your digital work.

4.  In your Will or Executive Directive, give your Digital Executor permission to execute your wishes with your digital assets. Your will can mention and direct them to the Digital Directive which will give them access to your Digital Assets List. It is essential that you don't put any account or password information in your will because wills becomes a public documents.  Which means anyone can access the information.

The Law and Your Digital Assets  
In many cases, if the company that holds your online account receives notice of your death they will freeze the account. Many of the terms of service say that accounts can be deleted or accessed by family members only if an official "death certificate" is supplied.  Death certificates usually don't arrive until 4 to 6 weeks after an individual's death.  This is what usually happens in instances of death, however, there is no definitive law on what happens to digital assets after death.  Which means many online companies are just handling digital asset ownership by ear -- usually, on a case-by-case basis. Which also means that anything can happen in regard to your online account after you die.  And that many decisions about your digital assets are being made by people with very little understanding of online presence, reputation branding, virtual worlds and digital assets -- the U.S. Court system.

What often happens is if detailed instructions are not left by the departed, companies will assume that they must "maintained privacy" via the TOS agreement "the departed" agreed to when alive.  Current privacy laws do not force online companies to allow family members or estate executors to access the deceased data.

Paul Black has a great PDF that can explain account policies. You should definitely read Your Guide to Estate Planning for Digital Assets.

You may also wish to become familiar with the Stored Communications Act and the
Computer Fraud and Abuse Act  which currently criminalizes unauthorized access to computers and data.

So let's recap . . .

Along with doing the 4 steps above:

IN YOUR WILL: Place a specific clause to allow for the estate trustee to access your digital assets.  This clause should give the power to access, handle, distribute and dispose of your digital assets. Don't put any password information in your will because it becomes a public document.

YOUR LIST OF ACCOUNTS: Leave a detailed list of accounts and passwords. You can use websites like SecureSafe or  Legacy Locker, to hold this information.

You will need a lawyer to create a trust.  This trust grants the beneficiary the legal right to access your account information after you have passed away through the use of trust law. I recommend this route if your digital assets are valuable.  For example, Lady Gaga's Twitter account is worth $9 million dollars.  I would definitely advise Lady Gaga to place here digital assets in trust!

So, my dears, what are your digital assets worth?  Make sure to protect them . . . for your family sake, for MY sake -- because, after all I've always wanted powerful and influential friends.

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