People spend hours everyday online in chat rooms, building business relationships on LinkedIn, tweeting away and creating mega content on facebook or Pinterest. Yet, hardly anyone considers what happens to their “online alter ego” once they’re incapacitated, change jobs or die. This was the topic covered by attorneys Kathy Ossian and Rachel Tucker. Ms. Ossian is principal of Ossian Law Firm and an expert on IT law. Ms. Tucker is a well known estate planning attorney with Joelson Rosenberg PC in Farmington Hills. Together they thoroughly covered the subject of “Ownership and Control of Digital Assets”.
ITS ALL IN THE TOS (Terms of Service)
Both attorneys made a distinction between personal and business digital assets. With your business digital presence, a fiduciary may be tasked with maintaining your online business presence in order to keep the company operating efficiently. As an example, most businesses conduct banking online, have a valuable domain name to maintain and conduct business through e-mails. Most service providers’ Terms of Service limits access to anyone other than the user. Both attorneys agreed it’s essential to inventory business vs. personal accounts, blogs, etc. as Michigan law provides that distinction between business and personal digital assets.
Many providers’ TOS requires the user not to share the user’s access or password with others. Ms. Ossian spoke of Yahoo which denied a Marine’s family access to his e-mail account after he was killed in action overseas. Under the terms of service agreement, Yahoo merely followed policy, which was completely legal. Other providers, such as LinkedIn, will not get involved in changing Administrators of an account. Most providers suggest an account be closed by one administrator and a new account opened up by another administrator.
Some states have enacted legislation to allow a Trustee, Conservator or Personal Representative the right to handle a decedent’s or incapacitated person’s user account. The National Conference of Commissions on Uniform State Laws is addressing the problem by drafting a model act. Michigan also has legislation pending on addressing the same problem. All of these acts or laws would allow a Personal Representative, Trustee or Conservator the right to access a decedents’ personal digital assets, subject to the Terms of Service.
In order to avoid such problems in the future, it’s best for a business user of these services to amend their will or trust, specifically allowing their fiduciary the right to access the user’s account and agree to continue to abide by the provider’s terms of service. The amendment should make specific mention of the fiduciary’s right to manage assets, pay bills, maintain a domain name, transact business online, but not have any rights to access the user’s personal e-mails. A good first step is to inventory all digital assets and update them periodically.
ROBERT E. MATTLER, Associate Broker, Attorney and LEED AP BD+C, is Director of Green Brokerage at Armada Real Estate Services in West Bloomfield, Michigan. He speaks, writes and reports about emerging green real estate and development issues in Michigan and elsewhere. Bob is a senior correspondent for www.greeningdetroit.com . For more information, contact Bob at Armada Real Estate (248) 762-4370; or by e-mail: email@example.com
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