Virtual Assets and Real Advice - Clients Need Candid Advice Regarding their Digital Assets (4 of 10)

With traditional property, the law has developed over centuries to protect the rights of owners to control the disposition of their property at death or incapacity through the use of wills, trusts, powers of attorney, and other instruments.[i]  During that time, planners have been able to count on the effectiveness of these tools to facilitate the dispositional wishes of their clients.[ii]  However, attempts to employ traditional methodologies to digital assets stored online are proving challenging at best.[iii]  Unlike traditional property, there are significant legal barriers standing in the way of an owner’s ability to control the disposition of online digital assets at death or incapacity.^[iv]

B. Terms of Service Agreements

  When people sign up for services like e-mail, social networking, microblogging, electronic file storage, and online banking, they are doing so through providers such as Google, Facebook, Twitter, DropBox, and Bank of America – all of which require the person to contractually agree to that provider’s terms of service.^[v]  As it stands currently, these terms of service agreements – not the intent of users, their legal representatives, or heirs – govern how these digital assets will be handled when a user dies or becomes incapacitated.^[vi]  The vesting of control in online service providers over the disposition of a user’s digital assets can be problematic for several reasons. 

First, these terms of service vary widely between service providers.  Take Google for example:  Google has a large online presence with many types of services.[vii]  Google has one set of terms for its services generally and supplemental terms that apply to some of its “relevant services.”[viii]  While the general terms of service agreement is silent regarding what happens when a user dies or becomes incapacitated, there is a policy relating to Gmail found under the heading, “Accessing a Deceased Person’s Mail.”[ix]  Under that section, Google outlines a time consuming two-step process for authorized representatives to follow.[x]  After a preliminary review that “may take up to a few months,” the person is notified whether they can proceed to the second step.[xi]  Step two requires the representative to furnish “additional legal documents, including an order from a U.S. court and/or additional materials.”[xii]  Despite all of this, Google emphasizes that this process does not guarantee access and that granting such access would be “rare.”[xiii]  Yahoo! on the other hand, is much more definitive about what happens when a user dies.  Its terms of service agreement explicitly states that “any rights to [a user’s] Yahoo ID or contents within [a user’s] account terminate” at death and Yahoo! reserves the right to permanently delete the account.[xiv]

Second, these terms of service can be changed unilaterally and even terminated without notice.  The second paragraph of Apple’s terms of service agreement starts with the following two sentences, “Apple reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms of Use, at any time. It is your responsibility to check these Terms of Use periodically for changes.”[xv]  Similarly, Twitter’s terms of service are “always evolving” and “may change from time to time without prior notice to you.”[xvi]   While change could be good, it can also run counter to the wishes of users.  Facebook’s decision in 2009 to “memorialize” the profiles of deceased is not without its critics.[xvii]  While constantly changing terms can make planning very difficult, term changes or even account termination without notice could make dispositional planning impossible.

Finally, terms of service are most often presented in long form as a take-it-or-leave-it “click-wrap” agreement that users rarely read or understand.[xviii] An individual wanting to read through Apple’s terms of service agreement would have to wade through 64 paragraphs consisting of over 3,400 words of legalese, not including the nine (9) documents incorporated by reference![xix]  Even so, if an individual reads and understands all of the terms but finds some to be undesirable, there is only one choice to be made – take it or leave it.  Again, Apple’s unequivocal language displayed prominently in the first paragraph of its terms of service agreement provides a useful example: “BY USING THE SITE, YOU AGREE TO THESE TERMS OF USE; IF YOU DO NOT AGREE, DO NOT USE THE SITE.”[xx]  Although some cases have been brought to challenge such agreements, the courts have typically been deferential to the online service providers.[xxi]

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