In this article, Mitali Shahane who is currently pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata discusses How to protect and bequeath digital assets?
Introduction
There goes an old saying “What remains permanent, is Change”. This perfectly suits the current scenario where we see a drastic and rapid enhancement in the legal phraseology with the introduction of new concepts. This term suitably co-relates in the century we live in as it is not wrong to say that 21st century is a technological world. Let’s take an example, A, wishes to protect and bequeath his property which is moveable as well as immoveable. However, he also holds certain properties virtually like Facebook accounts, bank passwords which might be used for funds transfer, etc. such accounts or passwords become your digital assets. There is no specific definition allotted to digital assets but as per our common parlance we may describe them as photographs, web sites, electronic accounts, social media accounts like Facebook, Twitter, LinkedIn, etc. and their respective passwords, email records and any other assets which exist in digital form[1]. The definition can extend to assets held personally like music and video files, medical records and any legal document or financial transactions in digitalized form. We one accumulates such properties it forms one’s digital estate[2].
There has been an increase in digital assets and the changing time has made inevitable to protect such assets as well. The term “digital assets” was coined in the 1990s which was used for trade secrets and any intellectual property in digital form[3].
Breaking the definition of Digital Assets
As described by Nathan Dosch, an estate planning and tax attorney at Nieder & Boucher “digital assets are any file on your computer in a storage drive or website and any online account or membership”[4].
We can categorize digital assets into following: devices, email, online accounts and other types of property.
Devices
Like computers, smartphones, tablets (IPads, Kindles, etc.) where personalized photographs, music and video files, important records like medical, legal, financial, business related are stored in such devices.
There is a possibility that there may be exchange of certain messages virtually which may be useful for the legal heirs of the testator after his death. It may act as a “passkey” for the other online accounts[5]. One may have a backup of emails on the physical devices or cloud platform.
Online Account
Do you have a Facebook account? Do you make bill payments using the respective website account? Do you buy things online? Such type of accounts constitute your Online accounts. Social Accounts like Facebook, Twitter, LinkedIn, Youtube, etc. Financial or bank accounts for transacting money or transferring money, Sales and shopping online accounts on Amazon, Flipkart, Snapdeal, etc. and also business accounts.
Other Types of Property
Common types of property requiring a password for access include business computers and telephones, home security systems, voicemail, smartphones, and home computers[6].
The questions which are bound to arise may be “How to protect and bequeath the digital assets of a person? What is the importance of bequeathing the same? What are the problems faced by an individual or why is there a lacunae in the Indian legal system or why do we do not have laws to regulate the digital assets unlike moveable or immoveable properties? What are the possible safeguards?
Why bequeathing digital assets does become a “must”?
Consider this example as reflected in the analysis of Rachel Pinch for Wayne Law Review titled “Protecting Digital Assets After Death: Issues to Consider In Planning For Your Digital Estate”. A person named Justin Ellsworth (who was a Lance Corporal), while serving his term in Iraq died by a roadside bomb. He principally used emails to stay in contact with his parents. After his death in order to access the account, the parents approached Yahoo! Services. However, but due to its strict adherence to terms of service, they were deprived of the records. Therefore, the father of the deceased moved to the court wherein the Courts at Michigan demanded Yahoo! to release the email account. Let’s take another example for the same. Parents in Virginia wanted an access to their son’s Facebook account where they desired to hunt for reasons behind his son’s death. However, the same was denied citing privacy as the reason and due to the interference of the court, Facebook providers had to divulge the password settings and the records of his account were provided. Not only the social media accounts are of paramount importance of bequeathing the assets, but also the financial or business accounts. There may be persons who run a profit making website, which may help the legal heirs of the deceased. The businessmen may have some of his invoices or orders stored on Cloud which may help his legatees to access easily. Images, photos, letters, emails, etc. serve a valuable, for they add sentimental value to the account. If a person provides the password of his social media accounts like Facebook, it can be prevented from being hacked and wrongly used after the person’s death. Thus, bequeathing and protecting the digital assets in today’s time is of paramount importance not only when we see security or protection but also sentimentally.
Problems regarding Digital Assets
Firstly, the idea of digital assets should appeal the people and they should be motivated to approach such way of protection. People usually feel burdened with the procedure one has to undergo in order to organize and plan. Secondly, in USA states like Rhode Island, Connecticut, Indiana, Oklahoma, Idaho, etc. have regulations governing the estate planning of digital assets, but there needs a codification of the same, all the laws are scattered. States like New York, Hawaii, Maryland, North Dakota, New Hampshire, Massachusetts, Virginia and Oregon are debating on the point of introducing a legislation. Thus, no uniformity in the laws brings in ambiguity and people are not perturbed about the same.
A Lacunae in the Indian Legal System
Contrasting United States, India has no law for regulating the protection and bequeath of digital assets. The concept of digital assets is still in its nascent stage and not much awareness has been initiated by the government. We do have the Information Technology Act, 2000, however, the Act does not regularize digital assets. We have the Indian Succession Act, 1925 or Hindu Succession Act, 1956 for the Hindus for moveable and immoveable properties, but no express provision for the same has been formulated. The IT Act, 2000 does not give any clarity on its application for digital assets bequeathed through wills and testaments[7]. In such a situation the principles of intangible property and succession can be applied. There may be a possibility that digital assets may be in some other country, then the question of jurisdiction needs to be determined keeping the laws of that country, thereby revoke the same and if one hires a local digital service provider, the laws are silent about the same[8].
Safeguards
What are the safeguards a person can undertake to bequeath his property? Due to advancement in the technology online data can be accessed for a lifetime. One has the option of uploading all the passwords and documents. For example the application available on Windows, TrueKey[9] can serve a great purpose in such cases as it helps preserve passwords for every account used by the deceased. The number of accounts and the emails exchanged can be sent to the chosen contacts after one’s death. However, it has been suggested that one should bequeath the digital assets through the will route. Will would specifically specify the number of digital assets and to whom these assets have to be bequeathed by the executor. You can also disclose the passwords and divulging the documents by annexing the same. If no clear information is expressed, apply the Arm chair rule whereby the intention would be not to disclose the details of his digital assets[10].
Steps to bequeath and protect digital assets
Firstly what is recommended is to get your digital asset sheltered by a protection plan. Steve Parrish in an article to Forbes titled “Planning Steps to Protect Your Digital Assets”[11] described his experience with the same. It was the time when he bought Apple II and knew that he has to rely on the installer, customer service and repairman for protection, but appreciates the fact that the technical infrastructure is more enhanced therefore, recommends to adopt the same.
People are advised to make an inventory. There are many accounts which has crucial information which can either be professional, business or personal. The employees needs to be guarded. Have you stored the data in a device, whether on cloud or not is very important to know all of this. Thus, inventory helps you to locate the information stored on such accounts very easily and how the information is backed up. Always make sure that you regularly clean up your inventory for finding out an weakness Also, keep the option of making a list of the digital assets you have been retrieving. Cast a wide digital net when planning[12], jot every detail along with other usernames, passwords and answers to the security questions. It is very important to know the law of the land, therefore it is advisable to consult any lawyer for this matter. One should not forget that while bequeathing the said assets they are not compromising on the privacy. Be particular with the executor and what kind of access has to be given to which person. Ensure that the usernames, passwords and answers to the security questions are kept separate from the will. The advantage of maintaining passwords or usernames separately would help one to change the same whenever he decides. Don’t get the will registered as it might become open to the public and here the most paramount thing is to keep the privacy secured.
A distinguished lawyer Victoria Blachly, has said that the beneficiaries are well defined in the will itself. Be very specific about the persons whom you desire to handle a particular set of digital assets. It is also advisable to revisit the terms of service agreements which you had agreed upon while making an account, etc. Be informed of companies’ MO and it make the task of the person so executing easier[13].
It is suggested that a written permission is better and in certain cases one specifies the disposition of the properties as per his instructions only. For example Google’s Inactive Account Manager which enables the users to handle or control emails, photos or any other document stored on certain Google websites[14]. One authorize an agent or give to a trust and if they are personal nature one can bequeath the same through a will with specific illustrations[15].
Never forget to use online data protection which are made specifically for handling and protecting the digital assets.
Conclusion
Thus, at this stage when everything keeps changing, we should also change as per the walks of life. Such thing is not only restricted to people but also lawyers. We everywhere that minutest of the property can bring strains in blood relations, digital assets is another facet altogether. Not the people should be forwarding thinking but also the government who should also protect the interest of the public by regularizing digital assets which are to be bequeathed. India is moving at a faster pace with internet reaching the villages and it’ll not be that far to see every person possessing digital assets.
[1] Protecting Digital Assets After Death: Issues to Consider In Planning For Your Digital Estate, Rachel Pinch, Wayne Law Review, 2014
[2] Digital Estates: Handling Digital Assets In The Real World (With Forms And Resources), Susan Porter, The Practical Law, August 2013, http://files.alicle.org/thumbs/datastorage/lacidoirep/forms/TPL1308_Porter_thumb.pdf
[3] Ibid
[4] Ibid 2
[5] Ibid 2
[6] Ibid 2
[7] Bequeath your digital assets too, Krishnaveni Sivagnanam, BusinessLine, October 5, 2014, http://www.thehindubusinessline.com/portfolio/your-money/bequeath-your-digital-assets-too/article6473349.ece.
[8] Ibid
[9] True Key auto-saves and enters your passwords (https://www.truekey.com/#access-features)
[10] Ibid 7
[11] Planning Steps To Protect Your Digital Assets, Steve Parrish, Forbes, Feb 18, 2014, 08:43 AM, https://www.forbes.com/sites/steveparrish/2014/02/18/planning-stepsto-protect-your-digital-assets/#2ba554bcef0c
[12] Protecting Online Assets: 9 Ways to Safeguard Your Digital Legacy, Katy Steinmetz, Time, Nov. 29, 2012, http://techland.time.com/2012/11/29/digital-legacy-assets/
[13] Ibid
[14] Ibid 11
[15] Ibid 11
