Protecting your #DigitalFootprint

                    Every minute, over 170,000 emails are sent, 700,000 Facebook status updates are posted, 600 digital videos are added to YouTube, and 7,000 photos are uploaded to Flickr. As the world turns paperless, digital assets have become the new normal. There are over 2.4 billion people worldwide using the Internet, which is 500% more than 15 years ago. Among Americans, 85% of adults and 95% of teenagers use the Internet. 2/3 of those people are active users of Social Media like Facebook, Twitter, and Instagram, which absorbs more than 25 percent of all time spent online. More than 50% of American senior citizens are online, and a surprising 92% of children under the age of 2 (yes, you read that correctly) have an online presence.

            Despite the fact that the world’s digital footprint is extensive, planning for digital assets is limited. Further, digital assets are constantly changing and growing. Such growth is outpacing existing state and federal laws governing digital assets. Online service providers are their own terms of service agreements and they are not all uniform. Surrounded by an unpredictable and evolving legal landscape, it is important for people to be aware of potential issues that may arise with respect to their own digital footprint and plan accordingly.

First, we need to define what digital assets are. Digital assets are information created, generated, sent, communicated, received or stored by electronic means on a system for the delivery of digital information or on a digital device. A digital asset, then, is any item of text, photograph, or any other media formatted into a binary source that includes the right to use it – an electronic record, so to speak.

The average person has digital assets worth approximately $35,000, according to a survey conducted in 2014 by a major software company. Even though digital assets may not be the most valuable assets you own, they can be some of the most cherished (digital family photos, videos, blogs, information stored on social media sites, and email accounts, for example). Nevertheless, some digital assets can have substantial value. For example, real estate in the virtual world known as “Entropia Universe” sold for over $600,000and the domain name “Fun.com” sold for over $10 million dollars. Like any other property, digital assets need to be managed during life and protected after death or incapacity.

All 50 States have criminal laws prohibiting unauthorized access to digital assets, but only seven states have enacted Statutes governing digital assets. Numerous other states have proposed legislation or are in the process of drafting legislation, including Florida. Federal Law, however, is outdated. The main two deferral laws governing digital assets are the Stored Communications Act (SCA) and the Computer Fraud and Abuse Act (CFAA),both passed in 1986 – which in the virtual world is the Dark Ages.

In 2014, the Uniform Fiduciary Access to Digital Assets Act (UFADAA) was passed. This set forth the parameters for handling digital assets in the event of incapacity or death of the owner of the assets. It covers four types of fiduciaries: 1. Personal representatives/executors; 2.Conservators/guardians; 3. Agents under a power of attorney; and 4. Trustees. It specifically defines a fiduciary as an authorized user, which should avoid liability for the fiduciary under the CFAA as well as applicable State laws that prohibit unauthorized access to digital assets.

Prior to the 2014 passing of the UFADAA, fiduciaries faced many obstacles with respect to digital assets which would not apply to traditional assets. Therefore, protective planning for these assets is necessary. Each Social Media provider has their own Terms of Service regarding access to digital media upon the passing of the accountholder. Facebook allows a close family member to access the account upon the death of the accountholder to delete or memorialize the accountholder, but does not provide the password or allow for the transfer of the account. Google+ and Twitter allow an authorized user to deactivate or delete the account or inactivate an account manager. The time frame for this to take place is usually less than one year, and the policy does not allow for transfer of the account, and does not speak to the release of the password. LinkedIn, Amazon, and iTunes allow an authorized person to close the account only. LinkedIn requires verification of death before allowing the account to be closed.

The first thing to consider is to create an inventory (hard copy or electronic) of all digital assets. The inventory should be updated regularly. Usernames and passwords should be kept updated at all times. For clients who change passwords frequently and/or use many different passwords (which are both recommended for security purposes), apps like “1Pass”, “LastPass”, “Dashlane”, etc. store all passwords with access to the list through only one main password. The future may bring more simplicity as fingerprints may become the new form of password.

Second, whomever you wish to designate as your fiduciary should be provided a list of all accounts, usernames and passwords, and each time they are changed or updated the fiduciary should be provided with a list of all updated information. Currently, no states have updated their statutes regarding Power of Attorney to include digital assets. However, if using a Durable Power of Attorney, a provision granting access to administer digital assets should be explicitly included.

Each person’s digital footprint grows every day. Amidst the developing legal landscape, it is important that everyone establish a plan to protect and secure their digital footprint. Such a plan is essential to make a transition easier (or possible) for their family or fiduciary in the event of death or incapacity, prevent identity theft, prevent financial loss, and protect their digital assets with sentimental value.