Estate Planning Law Report January 2013
Is Your Internet Presence Important For Your Estate? Well, Maybe

A thought-provoking article in the January 4 Wall Street Journal discussed what happens to a person’s internet presence after death.  Apparently, the various internet service providers are all over the map on this question, and no major legislative solutions exist yet.

For example, here’s what Yahoo’s terms of service say about your account with them:

No Right of Survivorship and Non-Transferability. You agree that your Yahoo! account is non-transferable and any rights to your Yahoo! ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.

By contrast, here’s what Google’s terms of service say about getting into a deceased person’s Gmail account:

If an individual has passed away and you need access to the contents of his or her email account, in rare cases we may be able to provide the Gmail account content to an authorized representative of the deceased user.

At Google, we’re keenly aware of the trust users place in us, and we take our responsibility to protect the privacy of people who use Google services very seriously. Any decision to provide the contents of a deceased user’s email will be made only after a careful review, and the application to obtain email content is a lengthy process. Before you begin, please understand that Google may be unable to provide the Gmail account content, and sending a request or filing the required documentation does not guarantee that we will be able to assist you.

You can tell that with email, they are mostly concerned with protecting the privacy of a deceased user.  If the lyrics to your next hit song are only in an email when you die, your estate is apparently going to be at the mercy of the masters of Google in attempting to retrieve them.

On the other hand, here’s what Google’s terms of service say about content you have entrusted to one of their services, such as Google Drive:

We believe that you own your data and preserving your access to such data is important. If we discontinue a Service, where reasonably possible, we will give you reasonable advance notice and a chance to get information out of that Service.

Some of our Services allow you to submit content. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours.

Note that the part about your content on their services doesn’t say anything about death.  This is where the action needs to be, because, frankly, this is where there is stuff, i.e. intellectual property, that may have significant value.  I don’t see how the on-line service providers could justify denying access to my intellectual property stored with them when the duly appointed administrator of my estate asks for it. 

It’s an evolving area, and one that will have to be addressed more comprehensively as the use of cloud computing spreads.  Sorry, Facebook users, but your Facebook page just doesn’t have enough (read, doesn’t have any) monetary value to justify having the administrator of your estate get very concerned about what happens to it.  My novel, or screenplay, or other such work (well, maybe not mine, but those of the next Stephen King or George Lucas), stored on Google Drive, on the other hand, is worth pursuing.

For (a little) more information, you might want to look at the Journal article, at: https://blogs.wsj.com/digits/2013/01/04/what-to-do-online-when-a-loved-one-dies/.  Also, stay tuned to this space for more on this subject.

ONE LAST ITEM ON RESTRICTING USE OF PROPERTY FOR AESTHETIC REASONS – BALTIMORE MAY BAN “FORMSTONE”

From the December 1 Baltimore Sun, via Overlawyered, another example of a municipal government using zoning to control aesthetics, witout even any pretense of any other objective (that is, other than a transparent invocation of the usual “property values” ruse):

Under the proposed zoning code, modular brick consistent “with Baltimore traditions” – a more expensive-looking finish – would be the only material allowed on the front and side facades of any new rowhouses built in Baltimore.

“There’s really no good reason [for Formstone’s inclusion], that’s the honest truth,” Feinberg [head of the city’s comprehensive planning program] said.

“We really want people to invest in their homes,” Feinberg said.

My faithful readers have no doubt already recognized what’s going on here.  In case you didn’t know, Formstone is apparently stuff that is applied to brick house facades to make them look like natural stone instead.  Obviously something that the decision makers of Baltimore need to protect their citizens from, right?

The two statements from the city employee make it clear how the Baltimore decision makers think.  It’s not enough that Formstone does no harm.  You have to have a good reason to use it.  And the purpose of the zoning code is not to prevent harm, in their minds. No, its purpose is to encourage favored behaviors. Apparently, Formstone doesn’t cost enough to count as an investment. 

Remember the story about the town in Virginia that wouldn’t let people tear down chain link fences and replace them with more expensive fences, because the chain link fences contributed to the historic character of the row houses?  What is it about the appearance of row houses that makes people want to have all these rules?

QUOTE OF THE MONTH

“I really didn’t foresee the Internet.  But then, neither did the computer industry.  Not that that tells us very much of course–the computer industry didn’t even foresee that the century was going to end.”

Douglas Adams, English humorist & science fiction novelist (1952-2001)

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