Social media is an exciting and creative way to connect, share information, and build communities. And the internet is becoming predominant as the marketplace where the daily transactions of life are conducted.

Still, one of the neglected ensigns of internet citizenship is advanced planning. When people die, there are virtual secrets that follow them to the grave — the last refuge of privacy in a transparent society. Courts and legislatures have only begun to reckon with the disposition of digital assets when no one is left with the knowledge or authority to conclude the business of the cyber-afterlife.

For the price of an e-mail address and a uniquely crafted password, anyone can become vested in the online world. Cloud computing and web-based data transactions offer access to a variety of host sites, whether a bank, a credit card company, a vendor, an online auction house, or a social networking site. These are the tools of our time, and every generation from now on will be leaving well-concealed digital tracks. Therefore, the most important long-term consideration is who can access a person’s online life after they have gone or become incapacitated?

When it comes to digital assets, the rights of executors, beneficiaries, and guardians are muddy. Drafting a will or advanced directive should include a harvest of the testator’s e-mail addresses, passwords and log in identifications.[FOOTNOTE 1] But the majority of state laws make no specific provisions for information assets such as those stored in the cloud.

For example, New York has an estate exemption for immediate family members, EPTL §5-3.1(a), which includes, among other items: (1) “electronic and photographic devices ” and (2) “ computer tapes, discs, and software, DVDs, CDs, audio tapes, record albums, and other electronic storage devices.”

But what happens to Flickr photo albums, Facebook profiles, YouTube videos, and Twitter accounts residing in cyberspace and locked behind passwords and security settings?

Oklahoma has become one of the first states to enact specific estate planning legislation that recognizes the social media portion of the cloud.[FOOTNOTE 2] Section 269 of Oklahoma Statute Title 58 Probate Procedure reads: “The executor or administrator of an estate shall have the power, where otherwise authorized, to take control of, conduct, continue, or terminate any accounts of a deceased person on any social networking website, any microblogging or short message service website or any e-mail service websites.”

Yet, this important first step leaves issues unresolved. Foremost is the need to define a person’s virtual footprint that will encompass all the activities to be administered posthumously or in the event of physical incapacity.

Attorney James D. Lamm in his insightful analysis of virtual estate planning begins with a definition of “digital property” that includes “data, Internet accounts, and other rights in the digital world, including contractual rights and Intellectual property rights.”[FOOTNOTE 3] Blogs, domain names, eBay accounts, and gaming sites are just a few of the types of property that Lamm considered in addition to e-mail, social media, and electronically created records.

No doubt there will be contentious fights over the right to inherit ownership or access to someone’s Facebook account, which might reveal a treasure trove of sentimental value or marketable assets. Such concerns might inspire the creation of virtual wills and advanced directives, or enlist the services of companies that provide for a smooth transition of online content to designated legatees.

“Websites like Legacy Locker and Asset Lock have been created and act as e-undertakers, locking away information like assets, documents, legacy letters and passwords.”[FOOTNOTE 4]

Some social networks already make provision for the afterlife: “Facebook profiles have become such a big part of our personal lives that the social network decided to give options if a user passes away. The profile will remain untouched, unless family members decide to memorialize the account, which prevents anyone from logging into it in the future, but still lets friends and family leave posts on the profile Wall in remembrance. Sensitive information like contact info and status updates are removed, and only confirmed friends can see the page.”[FOOTNOTE 5]

This online information will not always be easy to collect since it will be distributed across third-party websites and a growing array of iPhones, iPads, flash drives, and the like.

Moreover, an increasing number of personal technologies, which may be the sole repositories of critical data, use biometric encryption[FOOTNOTE 6] and other security measures to protect against identity theft,[FOOTNOTE 7] further complicating estate administration.

Finally, the records hidden in archive sites, backups, cache, metadata, Neoprint, or other byproducts of online activities might also have to be considered.

There’s no dead man’s switch for cyberspace. Much of it can go on with little or no human effort. It is conceivable, for example, that through the direct depositing of paychecks and automatic bill paying, a human being’s physical presence could become superfluous for some time — until they stopped showing up for work.

Likewise, significant and irreplaceable records can be effaced through routine computer operations.

About five years ago, the wife of an elderly New York man had passed on and his sole comfort was in listening to her outgoing phone message every day.[FOOTNOTE 8] However, when their phone company, Verizon, upgraded its voicemail system, the message was erased. There seemed to be no recourse. But we are learning that nothing is ever truly erased and anything created or posted in the digital world has a kind of virtual immortality. By dint of effort, Verizon was able to recover the message from their archives and restore the voice of the dearly departed.

This story also shows the inevitable problem of preserving digital assets individually and by society at large. Are computer records being recopied into updated formats? Is the software needed to read legacy data being downloaded along with the originals? What steps are and should be taken to assure that electronic media will endure and be readable in another generation or so?[FOOTNOTE 9]

A TOWN CALLED ROSETTA

A cautionary tale of what happens when a society neglects to safeguard the path to deciphering its writings is the Rosetta Stone.[FOOTNOTE 10] Carved in 196 B.C., the stele was a document detailing the accomplishments of Ptolemy V in three distinct languages: hieroglyphic, demotic, and ancient Greek. For 15 centuries, the meaning of hieroglyphs had been lost. But in A.D. 1799, fortune smiled when a Napoleonic soldier accidentally discovered the triptych in the Egyptian town of Rosetta (Rashid). It would be another 20 years before Jean-François Champollion recalled to life the language of the ancient Pharaohs.

We need more than serendipity to preserve the data of our lives beyond our lifetimes. Client records are already migrating to the cloud, and attached to the lawyers’ use of cloud computing is the responsibility for confidentiality and retention of those files.[FOOTNOTE 11]

And equally important is the need to assure that only correct information about clients is maintained in third-party databases. Therefore, vetting must precede preservation.

DATABASE CLEANING

Government agencies and private entities are required by law or by virtue of business needs to collect and preserve client data, e.g., offender registries, criminal histories, and credit bureau reports. However, some of this information might be incorrect or recorded in error or need to be removed. Recent corrective litigation highlights an important aspect of preservation, i.e., assuring that the information saved is accurate, complete, and whether it should have been recorded or revealed in the first place.

The respondents in Los Angeles County v. Humphries, 09-350 (U.S. Nov. 30, 2010), had been accused of child abuse but were later exonerated. Nonetheless, their names became a fixture in California’s Child Abuse Central Index, which did not provide a mechanism for challenging inclusion. The U.S. Supreme Court held that the respondent’s section 1983 lawsuit seeking a prospective remedy, i.e., injunctive and declaratory relief, ultimately depended on their ability to show that the government’s “policy or custom” violated their due process rights.

In Doe v. Fankhauser, 5:09CV2938 (N.D. Ohio, Nov. 12, 2010), a county clerk inadvertently posted online information that included the identity of a minor and sex abuse victim. However, the District Court held that this conduct was immune from liability, since it was not evidence of a “policy or custom” by the governmental entity responsible for handling the records.

On the other hand, in Bursac v. Suozzi, 22 Misc.3d 328 (2008), a Nassau County Supreme Court justice found in favor of the plaintiff whose DWI arrest information had been posted on the county’s “Wall of Shame” page. The online profile violated due process in part because of the permanency and global nature of internet information:

It is the judgment of the court that the County Executive’s actions, in publishing and maintaining the petitioner’s name, picture and identifying information embedded in a press release on the County’s Internet Web site, which results in limitless and eternal notoriety, without any controls, is sufficient to be the ‘plus’ in the ‘stigma plus’ due process analysis in the case at bar. The court finds that the petitioner’s due process rights have been violated. [Emphasis added.]

This “limitless and eternal notoriety” will have implications for long range litigation practices and case investigations. Database records of human metrics, such as fingerprints, Iris scans and DNA samples, might be subject to removal or sealing depending on the outcome of a case. The definition of “newly discovered” evidence will take on additional meaning as virtual archives are mined for exonerating or mitigating proof, just as they are now being used to solve cold cases.[FOOTNOTE 12]

Clemency applications and actual innocence motions will also come to rely on the data squirreled away in the cloud. Revelations from witnesses who did not come forward or confessions by guilty third parties might be unearthed post-mortem. And there’s no telling what might be discovered by the executor of a digital legacy.

Bare-all social media profiles and online confessionals hint at the possibilities:

At least two dozen [confession] sites are active, many launched in the past few months [2007] … What they have in common is their focus on unthinkable deeds, abhorrent acts or secret longings that likely involve sex or relationships, embarrassing moments or inner demons. Some of the revelations verge on the indecent. Others are outright illegal.[FOOTNOTE 13]

Computer and communication technologies are swiftly transforming society into an information-drenched culture. It is a place where personal data is stored in a virtual superstructure, a kind of smart library, outstripping the conventions and confines of home and office-based computing.[FOOTNOTE 14] And in this virtualized world, the governance of a super-information utility will hinge on the evolution of laws addressing human needs.

CONCLUSION

As people invest more of their living knowledge and data into digital media, the legacy of that virtual life becomes increasingly important.

The principal concern today is the passing on of passwords, divvying up social media contents, and protecting virtual assets. But five minutes from now, those social media sites will include life logged metrics with excruciating details about our health, activities, and collective experiences. They will be more intimate and vivid than any handwritten personal journal or photo album. And they will demand clear and comprehensive rules to oversee their final disposition.

This information generation lives in manifold realities, each of which must be addressed to protect the rights and interests that society has come to recognize as enduring. The lesson of the Rosetta Stone teaches us that there is no present tense that can long survive the fall and rise of languages and modes of recordkeeping.

After his spirited and humanizing journey, Ebenezer Scrooge resolved: “I will live in the Past, the Present, and the Future!” Our virtually augmented life makes that possible. But short of carving ones and zeroes into stone tablets, our legal system must develop far-reaching guidelines for passing on an accurate, accessible, and intact digital legacy.

Ken Strutin is director of legal information services at the New York State Defenders Association.

::::FOOTNOTES::::

FN1 See generally Andrea Coombes, “You Need an Online Estate Plan,” Wall St. J., July 19, 2009; Peter Svensson, “Death Leaves Online Lives in Limbo,” USA Today, March 16, 2009.

FN2 See Okla. Social Media Law May Set Trend, KOCO.com, Nov. 28, 2010. See also Maija Palmer, “How to Pass on Your Passwords,” Fin. Times, April 14, 2010 (“Digital inheritance is slowly starting to make it onto the statute books in a handful of US states, including Wisconsin, Connecticut and Rhode Island.”)

FN3 “Advising Clients and Fiduciaries with Significant Digital Property and Intellectual Property Interests,” 36th Annual Minnesota Probate & Trust Law Section Conference, June 7-8, 2010.

FN4 Stephanie Salvatore, “Cyber Nation: Protecting Your Digital Afterlife,” WCTV.tv, Nov. 19, 2010.

FN5 Id.

FN6 See Ericka Chickowski, “Biometrics and One-Time Passwords Gaining Traction Among Consumers,” Info. Week, Dec. 2, 2010.

FN7 See Kevin Paget, “Ghosting…Grave Robbery for the 21st Century, It’s Evident” (NCSTL), April 2008.

FN8 See “Lost Voicemail of Man’s Dead Wife Restored by Phone Company,” Fox News, March 19, 2008.

FN9 See generally National Digital Information Infrastructure and Preservation Program (Library of Congress); Dan Farber, “The Rosetta Project: Rescuing Languages,” ZDNet, May 25, 2005 (“[T]he Rosetta Project…is dedicated to archiving all the languages of the world online and creating tools to help recover and revitalize languages.”)

FN10 See The Rosetta Stone (British Museum). See also Juliet Lapidos, “Atomic Priesthoods, Thorn Landscapes, and Munchian Pictograms,” Slate, Nov. 16, 2009 (describes efforts to create a 10,000 year no trespass sign for nuclear waste sites).

FN11 See generally “FYI: Software as a Service (SaaS) for Lawyers” (ABA Legal Technology Resource Center); NYSBA Ethics Op. 842 (Sept. 10, 2010) (“using an outside online storage provider to store confidential client information”); Alabama State Bar Disciplinary Comm’n Op. 2010-02 (“lawyer’s ethical responsibilities relating to the retention, storage, ownership, production and destruction of client files”).

FN12 See Greg Cergol, “Facebook Helps Cops Revive Nassau Cold Case,” NBC News, Nov. 12, 2010.

FN13 See Sharon Jayson, “Confession Is Just a Keypad Away,” USA Today, Nov. 29, 2007.

FN14 See Kit Eaton, “Facebook to See a Surge of Artificial Intelligence in the Near Future?” Fast Company, Dec. 29, 2010.