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Neumann: Digital treasures play a role in estate planning

February 29, 2012
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Indiana Lawyer Commentary

By Matthew D. Neumann
 

neumann-matthew Neumann

Here is some interesting food for thought. In December 2011, Facebook introduced “Timeline.” At first only available to select users, it will become mandatory for all Facebook users in the coming weeks. More than just a new feature, Timeline is a redesign of Facebook’s user interface that reorganizes the structure and presentation of a user’s profile. Changing from the old “profile” format, Timeline now allows users to experience and consume information in a chronological, graphical timeline.

Think of it as a living, digital journal. You go about your life. Some things are mundane: taking pictures; writing down your thoughts and mood (status updates); talking with people; making new friends. Other things are significant: graduating from school; getting married; getting a job; the birth of your first child. Facebook will chronologically record and organize all of this information. With your assistance, Facebook will, in effect, record and chronologically organize your life.

The implications that stem from this are many (and most pre-date the release of Timeline). The most obvious implication is that at the end of your life you can look back and, in some sense, relive your life in a chronologically organized timeline. You can see photographs from when you were 16. You can relive the party you went to back in college. You can see all the well wishes you received when your first child was born.

Another obvious implication is that other persons (with, or perhaps without, your permission) can “live” your life for the first time. Likewise, you will be able to “live” the life of your family, friends and acquaintances. From there, the implications may be less obvious, but no less significant. Companies. Advertising agencies. Government. Investigators. Lawyers. Law enforcement personnel. Employers. Each, for different reasons, would jump at the chance to “live” your life.

A less obvious implication of Facebook – one that Timeline helps brings into focus – is the potential of Facebook for future generations. Today, even among the most diligent and heritage-minded persons, the tangible things that have survived from our ancestors are limited. For some (if not most), our basic knowledge and awareness of our ancestors is limited once we move beyond the two generations that came before us. Of course we know our parents. Of course we know our grandparents. How many people can name their four great-grandmothers or eight great-great grandfathers? Sadly, probably not many. Facebook may have the potential to change this.

I’ll admit that I can’t tell you the names of my four great-grandfathers. I can’t tell you what they looked like. I can’t tell you their hobbies. I can’t tell you what was on their minds on April 18, 1875. And I can’t tell you who wished them a “happy birthday” when they turned 30 years old. If you could travel into the future and ask my great-grandson the same questions, he might be able to tell you the answers. He would log into Facebook and go to the “Family” or “Ancestors” tab. He would navigate through a digital representation of his family tree, and within minutes, he would be traveling backward through my digital life. If he was so inclined, he might use the opportunity to get to “know me” in some small way. He could see pictures of me when I was 16, relive that party I went to in college, relive the birth of my son (his grandfather) and watch videos I made so my descendants could learn about me.

If you accept what I have described above as plausible and believe that a digital copy of your life can be recorded and potentially exist forever, the ability to protect, control and ensure the preservation of this digital information takes on an increased importance. What steps should we as a society take to ensure this protection and preservation occurs? Facebook offers a very simple approach to the issue by making it easy to transfer a decedent’s account to a memorialized status.

A more robust way to approach the issue is estate planning. The intersection of estate planning and technology presents a variety of interesting legal issues, the predominant of which is how to protect and manage digital assets that come in a variety of flavors – online financial accounts, digital media, digital records, etc. As other authors have pointed out, one’s Facebook profile or Timeline could be considered a digital asset that should be taken into account during the estate planning process.

An even broader way to approach the issue is the concept of a public utility. It is interesting to note that Facebook may exhibit two characteristics of historically regulated utilities: (1) arguably Facebook provides a product/service that serves an important public interest; and (2) Facebook, given its land grab on the social networking market, may have natural monopolistic tendencies that insulate it from competition. While it may be too draconian to imply that government intervention is a real possibility for Facebook, these are interesting issues to think about as Facebook continues to grow and becomes more embedded in our lives. At minimum, if we take seriously the idea that we can build, whether through Facebook or some future social utility, a comprehensive and navigable digital family tree for our society, including everyone in the conversation (i.e., framing the issue of digital preservation on a collective, societal level) might be worthwhile.

Given the exponential rate at which technology develops (if you believe Moore’s law), it’s hard to predict what the future may hold. These sorts of issues will only grow in importance as new technologies develop and our digital society ages. Although I am sure there are some octogenarians fully capable of sending a friend request or “liking” someone’s status update, generally speaking, those persons in the later stages of life are not full-fledged members of our digital society. It’s only a matter of time, however, before Generation Y and the Millennials – generations fully immersed in our society’s technological development – reach old age. As this occurs, as technology moves forward and as new issues develop, it is important that we continue to consider the long-term preservation of the digital treasures we create.•

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Matthew D. Neumann is an associate attorney with Hackman Hulett & Cracraft, practicing in the areas of civil litigation and utility law, with experience in cases involving utility regulation, insurance coverage and defense, eminent domain, and general real estate and business matters.  He can be reached at 317-636-5401 or mneumann@hhclaw.com. The opinions expressed are those of the author.

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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