15 December 2018

Digital Assets

Another piece on postmortem dealing with digital assets. 'The ‘New’ New Property: Dealing with Digital Assets on Death' by Heather Conway and Sheena Grattan in Conway and Hickey (eds), Modern Studies in Property Law (Hart, 2017) 99-115 comments 
Over the years, the law of succession has not been immune to the challenges posed by changing circumstances, whether social, economic or familial. In 1981, Professor Mary Ann Glendon published The New Family and the New Property, chronicling, inter alia, the move away from traditional property and family forms. Three years later, Professor John Langbein’s seminal article entitled ‘The Nonprobate Revolution and the Future of the Law of Succession’ highlighted the challenges posed to traditional succession law rules by alternative wealth forms such as insurance and life policies, joint assets, and pensions. More than three decades later, succession law continues to grapple with both changing family structures and the issues posed by so-called ‘will-substitutes’. However, it now faces another ‘New Property Probate Revolution’: the legal challenges generated by the so-called ‘digital footprint’ that virtually every citizen (old and young) leaves behind on death. 
As the time of writing, the latest available statistics suggest that almost 3.5 billion people worldwide (around 46% of the global population) are internet users. With the advent of the digital age, we spend increasing amounts of our time in the virtual world - creating not only an online personna, but leaving a trail of digital  assets in our wake. But what actually happens to digital assets when someone dies? This basic question raises a host of legal issues around ownership, privacy, access to usernames and passwords, and the duties of personal representatives when adminstering estates, which do not fit neatly within traditional succession law and property law concepts. The location of digital assets also leads to complex multi-jurisdictional legal issues, yet there is currently no ‘joined-up’ international law on the subject. 
This paper looks briefly at digital assets and how they are defined, before examining the challenges posed by this (apparently) new form of property from an estate planning perspective. Arguing that English succession law has so far failed to address these issues, the paper draws on the approach taken in the United States under the Uniform Fiduciary Access to Digital Assets Act and signposts some of the potential issues which any concerted attempt at law reform will have to embrace. ...  
 A major difficulty in this area is one of nomenclature: defining ‘digital assets’ is not straightforward,8 and there is no current definition in English law. Even outside the legal context, standard definitions are equally hard to find; what we have instead are collective descriptors of what typically falls within the realm of digital assets. 
Obvious examples include things like emails and email accounts, blogs, social media profiles and accounts (Facebook, Twitter, MySpace and LinkedIn), digital music collections (downloaded from iTunes or similar stores), repositories of digital photographs and videos (beyond those which have been uploaded onto social media sites), and online bank accounts and other financial investments. Online billing arrangements, subscriptions to magazines and gyms, Amazon accounts and Ebay seller profiles, as well as other registered shopping sites and loyalty schemes are also digital assets, as are business information lists (for example, client details and purchasing profiles) and domain names which an individual may have registered. In effect, any files stored or generated on digital devices are treated in this way. Several problems are immediately apparent. First, there is the seemingly endless list of things that can constitute a digital asset. Secondly, the value attached to specific types of digital assets will differ immensely; some (for example, bank accounts, financial investments, and domain names) will have an obvious monetary worth, while others (such as photographs, emails and social media profiles) have a purely emotional or sentimental value to the deceased’s surviving relatives. Thirdly, there is the issue of how to categorise digital assets, and the implications that this has. These problems all come to the fore in the succession law context, and are discussed at various stages throughout the following sections.