Life in the Cyberlane – Are you taking care of your properties from the cyber world?

Oh how things have changed.

Around 600 BC, Athenian statesman and law maker, Solon, was credited with the introduction into Greek law of wills. Prior to this, no man in Greece was allowed to make a will; all his assets at death belonged to his family. The terms of Solon’s law bear much resemblance to what we have under UK law today.

It wasn’t until the early 1990s, some 2,500 years on, that the real winds of change were about to have a fundamental impact on our personal assets. And the origins of these winds? Cyberspace!

But let’s go back just a few years to the early 1980s when these winds were little more than just a soft breeze. Microsoft ruled the world, our computers being largely DOS-based and essentially stand-alone word processors. The World Wide Web, emails, social media, Second Life and fiat currencies were all at least a decade or more away.

With the introduction of Sir Tim Berners-Lee’s World Wide Web in 1993, that early breeze started to gather intensity. The computer slowly evolved from a word processor into an Internet portal that became the primary means of people interacting with the world around them.

The turn of the second millennium and the spinnakers are up and the sails are full as we race into the digital era. Not only are we now using keyboard and mouse to connect with the world at large, but the introduction of VoIP has meant that even telephone services are transmitted over the Internet. I’m sure the song made famous by jazz musician Louis Armstrong in 1968, “What a Wonderful World”, was not based on the world that was beginning to dominate our lives.

Indeed, for many of us, the transformation into the Cyberworld was so subtle that we didn’t even realise what was happening around us – until there was a power failure!

The Internet has become such an integral part of our lives that it’s inconceivable to think that we could do anything, professionally or personally, without it. And therein lies a conundrum.

Solon set the scene for the disposal of our assets in accordance with our wishes following death, but in the Cyberworld in which we now reside, we have a number of very different asset classes. We are accumulating vastly more digital assets than we are physical assets and the legal system that should effectively deal with these types of assets is woefully behind the times.

Probate as arrived in Cyberspace but there are few who are capable of taking care of its inhabitants. In fact, such is the pace of technological change that many lawyers are suggesting the legal system may never catch up.

Does it really matter that the law is not up-to-date with regard to probate and digital assets? Without addressing specifics, having a will should cover all our assets – both physical and digital – should it not? The answer to the first question is an absolute YES and the answer to the second, sadly, is no.

As in the real world, life in Cyberspace varies and each decedent is going to present numerous challenges for the surrogate/executor and his or her legal advisors. As we have said in the past, just determining what online accounts a decedent has can be the first major challenge. Even when these accounts have beed identified, access to them will need to be gained.

Being an inanimate object, the computer is not able to make a rational judgement as to whether a user should have access to the privilege being requested (accessing files for example). For many of us, security revolves around the use of passwords. So, without a human to monitor the transaction, the assumption is made that if the user has the right password, then the user is the person who he or she claims to be – or at least has been duly authorised by the legitimate owner of the password.

With online accounts we use passwords and other security tools to protect our valuable property. In many cases, terms and conditions relating to usernames and passwords make it binding on the individual not to share these with anyone else.

In a study by private banking organisation US Trust, it was reported that of the wealthiest respondents, almost 50 percent regularly change their passwords to protect anything stored electronically. Probate estate may not always be required, but in many cases estate administration lawyers are suggesting that it would be desirable to establish one in order to give the personal representative of the decedent access to cyber property.

The most effective way for people to protect their digital estates is not in a conventional will, but in a digital will allows individuals to inventory all their digital assets, including usernames, passwords and postmortem instructions. A digital surrogate or executor is named by the asset owner and this person is subsequently provided access to the digital property upon satisfactory provision of proof of death or permanent incapacity. The digital executor can then download, delete or provide to beneficiaries such assets in accordance with the instructions of the decedent.

Would Solon be turning in his grave if he could see the position of our laws today regarding wills? You can bet your last Bitcoin he would!

Digital Assets Postmortem – Probate versus Policy

Death in Cyberspace could have been taken directly from a Flash Gordon comic strip: Flash Gordon in combat with Ming the Merciless, the evil ruler of the planet Mongo.

It’s a bit more serious than that but, nonetheless, it makes for an interesting story.

Digital death is becoming an expanding area of law that is attracting considerable comment and interest from a plethora of parties. Much of this interest has stemmed from the media’s capitalising on the frenzy surrounding social media sites (such as Facebook) and the deaths of account holders. Parents, on the one hand, are demanding access to their deceased child’s account while the social networks argue the issue of privacy and the Terms and Conditions agreed at the time of opening an account.

Some progress has been made, with Facebook implementing its “memorialising” feature, allowing friends and families to request that a decedent’s account become effectively frozen whilst still providing access by family and friends.

Yet this amenity fails to resolve more substantive issues created by a digital passing, such as who can dictate the fate of a loved one’s account, over what time period should a memorialised presence be maintained and whether memorialisation is what the decedent would truly have wanted.

A death in cyberspace is a novel issue for many lawyers and presents some interesting challenges that society as a whole hasn’t fully come to grips with. It’s a quiet revolution that is rapidly coming to the probate and estate planning world.

Aside from social media accounts there are many other digital assets that are creating equally difficult issues.

Take for example your website. Is it hosted in the UK, in an Asian or European country, or perhaps in the USA? And what about your email accounts? Where are they held? In the event you become permanently disabled or you die, which country’s property laws apply?

And then there are issues relating to online payment accounts, virtual currencies and reward cards. Online payment mechanisms such as e-Bay, PayPal and Amazon will usually have traditional bank accounts linked to them, so it might be unlikely that cash balances will exist in the online accounts. However, this will definitely not be the case in every situation, requiring attorneys and executors to thoroughly check the online accounts for pending refunds and credits.

The situation with online accounts can be made even more difficult if the email address of the account holder is unknown. Often with no physical address and communication being made only by email (often to an enquiries@ address), dealing with these entities is generally more difficult than dealing with high street banks.

Additionally, with the increasing numbers of online-only banks beginning to emerge, attorneys’ and executors’ ability to continue to manage such accounts digitally may will depend on the terms and conditions of the bank.

Reward cards are a common inclusion in most people’s wallets and will include those from supermarkets, fuel companies, airlines and hotels. Whether or not the value of these schemes can be used by an attorney on behalf of an adult, or transferred after death, depends on the organisation administering the scheme.

Some of the big supermarkets provide for rewards to be transferrable on death, but other organisations – such as airlines and hotel groups – state that loyalty points that are unused at the time of death will be cancelled, together with membership of the scheme.

As the digital asset stakes in the cyberworld continue to rise, the challenge of finding a standard dispositional protocol for these assets may face competing power extremes. On one side of this continuum we have traditional property law, often adequately covered in probate. On the other side, however, we have corporate policy, manifested typically as a User Agreement or Terms of Service.

Contrary to what these extremes might suggest in terms of the best solutions to the issues raised by digital death, viable compromise solutions do not yet exist between these two legal extremes. One way forward would be to find a mid-continuum solution lying somewhere between probate law and corporate contractual policy that would serve the greatest number of societal interests.

Dealing with digital assets under a power of attorney or a Will can present challenges and will be an area of the law that attracts a lot of media attention.

Even though many digital assets may have more of an emotional or sentimental significance rather than financial value, it is an area of law that is beginning to raise new challenges for legal advisers and probate lawyers.