If you are incapacitated or pass away, what happens to your Facebook account? Or Instagram feed? Who’ll be able to see that you’ve amassed subscriptions to 1,310 cat videos on YouTube? Giggle all you want, but digital assets are an increasingly hot topic in the legal field. Remember the tragic shootings in San Bernardino, California, that triggered a very heated and very public fight between the FBI and Apple over access to the shooters’ cell phones? No one’s laughing about that one. Now Minnesota has become one of the first states to enact a law that makes it easier to officially facilitate—or specifically deny—access to your digital assets, including social media accounts.
Social media, once the exclusive domain of bored college students, has become a nearly inescapable phenomenon. It’s the new postal service. It’s the new telephone. And while specific social media platforms fade in and out of fashion, the trend toward living at least part of our lives online is no longer a “trend” at all—it has become an established way of life. According to a new report from Business Insider, “Nearly 20 percent of total time spent online in the US across both desktop and mobile devices is on social platforms. Facebook, alone, makes up 14% of total time spent online.”
In other words, your boss is probably right to be a little paranoid about how you’re spending your time on the Web at work. (Don’t act like you’re not a pro at minimizing browser windows as soon as you hear footsteps approaching from behind.)
And yet, in spite of this extraordinary investment of time—arguably our most valuable resource—into social media, few of us stop to consider the value and implications of these digital assets. In fact, many of us wouldn’t even consider our social media accounts to be assets at all, even though in every legal and practical sense, that’s exactly what they are.
Here’s something you might not know: by default, except in the case of a hack, your social media accounts are very well protected. In December 2013, Orono’s Bill and Kristi Anderson found that out the hard way. Their 19-year-old son was found dead, his cell phone located near his body. Police said it probably wasn’t foul play, but the Andersons weren’t satisfied. They wanted answers, and they thought the data on his phone, especially his social media accounts, might hold those answers. The problem: they had no legal right to access the information on his phone—even though they purchased it and it was in their name. They didn’t have the password, and Apple wasn’t about to cough it up.
Frustrated, the Andersons worked with Rep. Debra Hilstrom (D-Brooklyn Center) to push a bill to help Minnesotans enact more control over their digital assets in the event of their death or incapacitation. The bill passed through the legislature and was signed by Governor Dayton and took effect on August 1st.
Under the new law, you can take two actions to manage your digital assets:
- Add language to your Will or Trust to give your executor (the person managing your estate on your behalf after you die) access to your digital assets, and give instructions on how you want those assets handled; and
- Assign a power of attorney (POA) who can manage and/or make decisions for you regarding your digital assets while you’re still alive. In other words, if you’re laid up in the hospital, your POA can use your Facebook account to keep friends and family updated on your situation and prevent nefarious posts or hacks.
Here’s the thing: The law gives you the opportunity to make these designations, but it doesn’t do it for you. You still have to take action. In theory, you could go into every single one of your social media accounts and individually opt-in to grant or deny access per your wishes, but every platform is different and rules vary widely. An extremely socially media-savvy person could probably make it work, but the new law allows for blanket access that will stand up in court. An attorney can help you draft (or tweak) a will and assign (or tweak) a POA so you can take full advantage of the new law.
For all the time you spend on your social media accounts, it’s worth spending just a little bit of time thinking about what you want to happen to those accounts—along with everything else on your phone and computer—if you die or are incapacitated. “Your online life is just as much of an asset as a bank account or a car,” said Sarah Sicheneder, attorney at Johnson/Turner Legal. “Potentially, people remember you more via your online presence than from your real world life. Managing that in a way that’s respectful to your legacy is pretty important.”