My father suffered a stroke in 2009 and became a different person overnight. I look to records—photos, letters, and email—in an attempt to hold on to the memory of the optimistic, social, curious, fun-loving, affectionate, and methodical person I used to know. My dad was an avid photographer, prolific letter writer, and careful record-keeper, so we have albums, letters, paper records, and diaries to draw on. In the last decade or so, he delightedly embraced email, the internet, and digital photography, which then became his main means of communication with friends and family scattered around the world. The physical artifacts are easy to collect and organize; the digital, much less so. This has given me pause: So much of what we do now is in virtual space.

For those like me who have known the constraints of overflowing filing cabinets and their digital equivalents, floppy disks, and small-memory computers, the advent of fast bandwidth, mobile computing, and inexpensive and abundant online storage has been liberating. Today, we create and scatter our thoughts, photos, and videos widely and with abandon; we buy and sell things and pay bills online and enjoy the convenience of online banking.

Current research from the Pew Internet & American Life Project (“The Demographics of Social Media Users—2012,” Maeve Duggan, Joanna Brenner, Feb. 14, 2013; pewinternet.org/Reports/2013/Social-media-users.aspx) shows that 72% of online adults now use social networking sites. Forty-three percent of seniors and 89% of youth aged 18–29 are social media users. Moreover, 61% of adults in the United States now bank online, and 35% of cellphone owners bank using their mobile phones.

Only infrequently, if ever, do many of us pause to take stock, organize, or think about contingencies and what will happen to it all if things go beyond our control. As for young people born in the past 20 years or so who have grown up with the internet, email, texting, social media, and online banking and financial transactions, I wonder if they ever think about the long-term preservation of their personal records, all of which may be digital?

This article attempts to articulate why we should be concerned about good record-keeping in this digital age, tries to understand prevailing attitudes toward personal digital records management, and to point to resources and tools that can help us preserve our own digital legacies or help others with theirs.

THE IMPORTANCE OF GOOD DIGITAL RECORD-KEEPING

Digital content can be viewed as assets, and as such, a new form of personal property. As property, digital assets have economic value. In a 2011 McAfee survey of 3,000 consumers in 10 countries, North American respondents estimated the value of the digital assets owned across multiple digital devices at nearly $55,000 (“McAfee Reveals Average Internet User Has More Than $37,000 in Underprotected ‘Digital Assets,’” Sept. 27, 2011; mcafee.com/ca/aboutnews/2011/q3/20110927-01.aspx); a 2011 U.K. study called “Generation Cloud” (“Generation Cloud: A Social Study Into the Impact of Cloud-Based Services on Everyday UK Life,” Centre for Creative & Social Technology, University of London; commissioned by Rackspace Hosting; rackspace.co.uk/sites/default/fileswhitepapers/generation_cloud.pdf) estimated the total value of digital assets of British online users at GBP 2.3 billion.

As a form of property, digital assets can be transferred or bequeathed to one’s family, friends, acquaintances, or special causes. Unlike physical property, digital assets are intangible and invisible. The rights of ownership, control, and access of digital assets are intertwined with complexities of privacy and security protection as laid out in myriad service provider policies. Since there is little legislative guidance to help negotiate those complexities, we need to make sure we take charge now and develop good record-keeping habits, so that our digital assets are documented and findable.

Digital assets also have sentimental value: As more and more content is stored online, these assets become a chronicle of individual lives. Institutions such as The British Library, the Europeana digital library, and the Library of Congress are very conscious of the importance of personal digital content to social and local history, and many projects are under way worldwide to incorporate personal histories into special library collections.

As new internet uses are constantly being created, it is difficult to define what constitutes a digital asset, and there is little guidance from case law.

In her paper evaluating the Uniform Fiduciary Access to Digital Assets Act (“Laying Your Online Self to Rest: Evaluating the Uniform Fiduciary Access to Digital Assets Act,” University of Miami Law Review, p. 3, Feb. 17, 2013; posted May 25, 2013; forthcoming; available at SSRN [ssrn.com/abstract=2269093]), Samantha Haworth observes that any definition of digital assets needs to be “ broad enough to evolve with online innovation and be clear enough for lawyers, online service providers, and the general public to understand what is included in the definition.” Her broad working definition takes into consideration e-discovery motions (electronically stored information requested in the initial phase of civil litigation):

Information created, generated, sent, communicated, received, or stored by electronic means on a digital service or digital device and includes, without limitation, any usernames, words, characters, codes or contract rights pursuant to the terms of service agreement that controls access to a digital account.

For clarity, Haworth proposes further categorizing the information thus: 1) access information (account numbers and login information, the means to access other assets); 2) tangible digital assets, or files that hold a definable form and can be converted into physical assets (i.e., by printing); 3) intangible digital assets, the trail of “likes” or profiles, or comments and reviews posted on a dating profile; and 4) metadata, or data stored electronically with a document or website about the data’s access history, location tags, hidden text, author history, etc.

Among other examples, Haworth cites a probate context, in which a federal court ordered the estate of a woman who died in an airplane crash to produce all of the deceased woman’s social media accounts, emails, text messages, and instant messages that related to the decedent’s domicile and the estate’s loss of support claims. E-discovery is becoming an increasingly common practice, making it extremely important to practice vigilance and good record-keeping in the digital realm. (See “Comparing E-Discovery in the United States, Canada, the United Kingdom, and Mexico,” Gavin Foggo, Suzanne Grosso, Brett Harrison, Jose Victor Roderiguez-Barrera; mcmillan.ca/Files/BHarrison_ComparingE-Discoveryintheunitedstates.pdf] for an overview.)

STEPS TO MANAGING OUR DIGITAL LEGACY

Many are not aware that in emergency situations or after someone dies, family members or executors can face numerous practical, legal, and moral problems in getting access to and handling another’s digital assets. News stories on this topic are tracked by John Romano and Evan Carroll on this website: thedigitalbeyond.com/in-the-news. We need to plan and take steps to manage our digital assets while we can.

Access

In establishing our online presence: a) we use a computer, camera, or mobile device; b) we register with online services: email, banking, online purchases, photo sharing, website hosting; and c) we store files on a hosting server, network, or cloud service. This process of access, subscription to multiple services, and scattering of digital content over many devices and locations makes it necessary for us to record what we have—and where—in a form that can be communicated to an executor or family member.

Most of us have several online accounts with different types of services: bank accounts and investments in more than one institution, medical records in a personal health record, website domain ownership information, and photos, music, video, and blogs on various social networking sites. On a regular basis, we may pay bills, collect royalties, make investment decisions, update information, renew subscriptions, or close accounts. Access to each account is by password and users are advised, for security, to have different passwords for each account. We access our online accounts and store content on our own computers and mobile devices. Unlike with paper records, when someone in the family may take responsibility for record-keeping, in the digital realm, we are responsible for such record-keeping ourselves.

Consequently, in an emergency, no one may know what accounts we subscribe to, how to access information for each account, or how to deal with the content within each account unless we record details of the accounts we have, show how to gain access to each account, and provide instructions in a readable and easily available format on what needs to be done.

Service Provider Agreements

Digital files that we put on social media, networking, or cloud sites are our intellectual property, but access to those files is defined by service agreements with the provider. How many of us click on the “I agree” button consenting to the terms of service without ever reading through the policy?

Service agreements generally cover policies on how user information will be protected and kept secure. The agreements may describe what information is collected about users; how it will be collected, stored, and used; and the conditions under which it may be shared. Some accounts put the onus for setting levels of privacy with users; others (such as banks and medical records) set their own levels of privacy. Some agreements may have policies stating what will happen to the account on the death of an account holder, allowing family members to remove or memorialize accounts, or to receive a copy of the contents of an account on portable media. Some may only release the account to a named executor and may require some proof of death.

For example, Yahoo!’s terms (as of March 16, 2012, info.yahoo.com/legal/us/yahoo/utos/terms) explicitly state that user accounts are nontransferable, and any rights to the user’s Yahoo! ID or contents within an account terminate upon death. It also states that upon receipt of a copy of a death certificate, the account may be terminated and all contents therein permanently deleted. Earlier this year, Google made available an “Inactive account manager” as a new feature, providing users a way to share parts of their account data or notify someone if their account has been inactive for a certain period of time, as outlined here: support.google.com/accounts/answer/3036546?hl=en.

The bottom line is we need to pay attention to the service agreements we enter into. When we put our digital assets on virtual sites, we cannot assume just because the files may be readily available online, executors or family members will be able to access them. Rights of access will be defined by the terms we have agreed to with the provider of that account (“What Happens When We Die: Estate Planning of Digital Assets,” Maria Perrone, CommLaw Conspectus, V. 21, 2013, pp.185-210; http://commlaw.cua.edu/res/docs/21-1/Perrone.pdf).

Legal Guidance

Currently, only five states in the U.S. (Rhode Island, Connecticut, Idaho, Oklahoma, and Nebraska) have enacted legislation specifically allowing personal representatives to access certain types of a deceased’s digital assets, but the laws vary widely. While there is a Uniform Law Commission Fiduciary Rights to Access Digital Assets Act in the making right now, it is not expected to come into force for at least 2 years. Without clear legal guidance, estate managers may face criminal charges for illegal access to an account (under the Storage Communications Act, 18 U.S.C., Section 2701, for example).

For more information on estate planning for digital property, James Lamm, an estate planning attorney writes a regular blog on the topic: digitalpassing.com.

Types of Assets (And Liabilities)

There are different types of digital assets, and while there is certainly overlap, these assets accumulate in different categories: personal, social, financial, business. Planning for their management, disposition, and/or transfer to executors or to family members may differ for each category. One should consider what it will take to make things easier for family members and executors in order to prevent identity theft and to prevent losses to the digital estate, as well as to avoid losing the deceased’s story and to keep unwanted secrets from being discovered (“Digital Planning: The Future of Elder Law,” Gerry W. Beyer, Naomi Cahn, NAELA Journal, Vol. 9, No 1; papers.ssrn.com/sol3/papers.cfm?abstract_id=2252653).

Personal, medical, educational, family milestone, and legal records may be stored on a computer, other media, or smartphone. Some of this information may be stored in formats created using proprietary software or on older media that may have become inaccessible. We may need to think about converting them to more durable and more current formats if we want to preserve them. We also have to ensure we record and leave access information so it can be readily located.

Social media assets involve interactions with other people; some of this may need context to be useful. These assets may include a variety of content—email, photos, blogs, Twitter messages—and some may be intellectual property accessible to, but not owned by, us. This content may also include the online profiles we develop online. Some of these assets may be automatically disposed of after periods of inactivity. This may be a problem if family members want to preserve a memory for sentimental reasons. Some content may continue into perpetuity, even if this may not be desirable. In a Technorati blog from March 2012, it was reported that there were 30 million Facebook accounts that belong to dead people (“Over 30 Million Accounts of Facebook Belong to Dead People,” Craig Blaha, Technorati Technology, March 7, 2013; technorati.com/technology/article/over-30-million-accounts-on-facebook).

Money in financial, banking, online trading, or savings accounts will end up being abandoned if an executor cannot liquidate the accounts, either because the executor does not know about them or is denied access to them. Subscriptions, utility bills, and other financial obligations may accrue penalty charges unless someone can access these accounts to pay off liabilities in an emergency or to close down accounts permanently.

Individuals engaged in independent business may have client files, patient information, or customer data on accounts in the cloud. If we own the data, it may be financially valuable as part of our estate. If we have client information, we would need to ensure proper transfer of it.