A picture may well be worth a thousand words, but if its a digital picture or any other digital asset on a cloud somewhere or a device, what is its value and what happens when the person who saved or posted it dies or becomes incapacitated?
Digital assets include any information stored on a computer or digital device, content uploaded to web- sites, and digital intellectual property like domain names. In 2013 American consumers estimated their digital assets were worth $50,000.
The value of an America’s digital assets based on a McAfee survey was $50,000 in 2013. That is the latest data available and certainly well under what it would be today with the rise in people using digital devices.
Digital assets include any information stored on a computer or digital device, content uploaded to websites, and digital intellectual property like domain names, according to Peggy Clarie Senentz with Clarie Law Offices, P.A. in S. Pasadena.
The question of what happens to those assets varies by state. She uses a case from Massachusetts to illustrate how frustrating it can be when access is denied. Two brothers had set up a shared Yahoo account. When one died, the other wanted to notify his brother’s Yahoo friends about his death, but couldn’t remember the password. When he request- ed access, Yahoo denied it claiming it was a breach of Federal law. Litigation ensued over where a suit could be brought, what could be accessed and who could access the account. It was costly and frustrating.
Here the Florida Fiduciary Access to Digital Assets Act of 2016 allows residents to avoid a simi- lar situation provided they designate control of their assets one of two ways: through the company that holds the account, like Yahoo, if they offer that service, or through direction specified in a valid will, trust, power of attorney or other record. In the absence of any guidance, the default is the terms of service (TOS) that most people skim without read- ing when setting up accounts.
Clarie Senentz shows a selfie she took at the request of her 9 year-old son for a school project. Joking that it is “hideous,” she asks, “Why would I want to save this photo? The answer is because it’s priceless and of course my children want it,” she says laughing. “This act ultimately protects the dis- tribution of your digital assets like a safe,” she says.
The act only applies to fiduciaries (personal representatives, guardians of the property of minors or other incapacitated persons, agents acting under a power of attorney and trustees). It does not change property law but protects prop- erty rights.
In addition to providing statutory authority for a fiduciary to manage digital assets, it protects fiduciaries from liability.
She recommends people review existing directives or create new ones plus prepare an inventory of digital assets and the associated user names and passwords. She likes random password generators that require only one long, strong pass- word to manage all the other passwords.