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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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