Online and Digital Asset Planning and Protection
Cloud computing, social media and online marketing are all the rage with lawyers these days, but have you considered what will happen to your online presence , data in the cloud and digital assets if something happens to you?
While the fate of cloud client data may not be as much of a concern for lawyers who work in firms where someone else can take over, no matter what size firm you practice in, you probably have both personal and professional information online that you may or may not want others to have access to. These might include:
- Google +
- Photo sharing
- Personal or business websites
- Bank accounts
- Cloud-based documents and client files (Dropbox, Evernote, etc.)
- Credit card information stored in shopping carts or online shopping website accounts
And that’s just the tip of the iceberg.
Most traditional wills (assuming you have a will) name someone who will take charge of your affairs after you die, but most don’t specifically outline what will happen to your digital assets. Many states have not yet passed laws which cover digital assets, either.
My friend Dennis Kennedy started writing about this issue two years ago, but it is still a relatively uncommon practice to include digital assets in estate planning documents. Now even the United States government has recommended wills to cover digital assets and social media accounts, saying, “If you have social media profiles set up online, you should create a statement of how you would like your online identity to be handled. Just like a traditional will helps your survivors handle your physical belongings, a social media will spells out how you want your online identity to be handled.”
For example, do you want the executor of your will to see the inner workings of your Facebook page? Do you want those you entrust your financial assets with to have control of the digital ones as well? If you’ve used filters as part of these programs such as Facebook friend lists or Google + circles to segregate information, do you now want it all revealed to whoever gets access to your account? (And do you want them to know you added them to a custom Friend List entitled, “Annoying Relatives?”)
The situation may become even more complicated if you haven’t passed away, but you are incapacitated. In that case, you may have designated a health care proxy to make medical decisions for you, but do you want that same individual to monitor your other online assets? You may want to memorialize some instructions in a living will in the event that you become incapacitated.
Digital Asset Planning Issues
In the event that you do pass away, who will be your online executor? Should this be the same or a different person as your regular executor? Will this person be willing to spend the time to do what you request, whether that is closing out your accounts, posting notices or protecting sensitive information about you and your family?
How do you want your accounts to be handled? Do you want messages read, or the account simply deleted? Do you want your accounts memorialized? How will your online contacts be notified of your death? Will your executor know how to shut down your website or blog?
Photographs are some of the most cherished items. They help preserve family history and memories. Traditional printed photographs and photo albums make way for digital albums and Facebook timelines – how will this affect your legacy? Will your family have access to Instagram, Flickr and other accounts where photos are stored?
What are the privacy policies of each of the services you currently use? Will your executor or other designee require your passwords to gain access to your accounts? How will you provide them? (This is an especially important consideration if you change your passwords regularly, as you should). What other steps will the service require to be taken to gain access to your account?
How many passwords and accounts do you have? Most lawyers I know do a poor job of keeping track of accounts and passwords, and those who have done an inventory are stunned at the sheer number of passwords and accounts they have created.
What about business or client information? Do you have a succession plan? In years past, when a lawyer passed away, another lawyer could go into their office and review their physical files or client lists to contact clients, take over cases or wind down the practice. But now much of this information is stored digitally. You may have password protected your computer and there may be further layers of security around cloud storage systems, contact information or client files. And of course, you may have information stored in multiple devices, including smartphones, laptops, flash drives, etc. Much of this information may be sensitive personal information for either you or your clients.
Since so much is being stored online these days, new services have cropped up to deal with these issues, including Legacy Locker (“a safe, secure repository for your vital digital property that lets you grant access to online assets for friends and loved ones in the event of loss, death, or disability”) and Secure Safe , whose website touts them as “the Swiss safe deposit box for your documents and passwords,” are cropping up to help people set up an account to store passwords and identify who can have access in the event of your demise.
In his original article (and a recent ABA Journal tech column), Dennis Kennedy recommended a simple five step plan which still holds true today:
- Inventory your digital accounts
- Identify appropriate help
- Provide for access
- Provide instructions
- Give appropriate authority
If you haven’t done so already, now might be a good time to follow this plan.
(photo: Hand sign from Shutterstock)