By: Salvatore M. Di Costanzo, Esq.

Online social media has become commonplace in our society. Simply consider that there are 1.28 billion Facebook users. Providers such as Facebook, Twitter, Pinterest, Instagram, LinkedIn, Flickr and others offer a medium for socialization and to an equal extent, storage of personal data. For better or worse, digital media has replaced the traditional mailbox, notepad, cabinet filing system, photo journal, and telephone. Digital media has become an extension of the person; containing a plethora of personal and often private information such as conversations, photos, and passwords. In most cases, these items are irreplaceable, yet, few consider how such media will be accessed if they become incapacitated or die.

Currently, there are no laws in New York State dealing with the handling of your digital assets upon your incapacity or death. To the contrary, there are stringent federal laws in place that prevent online providers from divulging personal information to third parties without your consent. New York State has also enacted laws making the unauthorized access to computer systems criminal.

In one particular case, a Court upheld Facebook’s decision to deny the family of a decedent access to her online account where her family intended to dispute findings that her death was a suicide. The family believed that her Facebook account contained relevant evidence that would show her state of mind leading up to her death. Relying on federal privacy statutes, the Court determined that Facebook could not be required to grant the family access to her account.

Based on the foregoing, most online providers will refuse access to anyone other than the account owner, thus, creating a debacle if you become incapacitated or die unless the online provider has specifically dealt with the issue in their terms of service. In the absence of State law, one must look to the terms of the online provider’s service agreements that are signed when the account is opened. For instance, providers such as Facebook and Google have taken a shot at providing some procedures to deal with an account owner’s digital content upon death or prolonged periods of inactivity.

Facebook now allows users the option to have their account memorialized or deleted upon death. If you choose to have your account memorialized, you can appoint a “legacy contact” who will have limited ability to manage your account such as updating your profile, creating a copy of what you shared on Facebook and responding to requests from friends. A “legacy contact” cannot log into your account, change past posts, read messages sent to friends, or remove friends.

While Facebook’s new options are a start, long overdue legislation is needed in this area to allow unfettered access to a fiduciary such as the executor of your estate upon your death. Moreover, the efforts being only seem to take into consideration death and not incapacity.

One way to deal with the issue of incapacity is to prepare a Power of Attorney with a competent estate planning/elder law attorney that is specifically tailored to deal with digital assets. As discussed above, most laws prevent online providers from releasing information to third parties without your consent. Our Powers of Attorney include language allowing the agent appointed under a Power of Attorney to consent to the release of your digital assets to the agent.

Other estate planning documents such as a Last Will and Testament or Revocable Living Trust should be modified as well so that your executor and/or trustee has the power to deal with your digital assets upon your death. Our documents grant unto the executor and/or trustee the power to deal with online service providers in connection with your digital assets notwithstanding the terms of a service agreement.

Estate planning for digital media is a new concept and needs to be flushed out through legislation and case law. Until progress in made in New York, you would be well served to implement the recommendations discussed herein. It would also be prudent to create a list of your online accounts, including passwords and share that information with someone you trust.

We are experienced attorneys in estate planning and elder law matters and look forward to working with you.