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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. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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