Richmond Journal of Law and Technology

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Blog: #Wanted on #WarrantWednesday

Patty_Hearst_FBI_posterBy: Milena Radovic, Associate Manuscripts Editor

In March 2015, Butler County Sheriff’s Office in Ohio posted a series of pictures and brief criminal history of Andrew Marcum on its Facebook page.[1]  The Sheriff’s Office requested that the public help in locating Mr. Marcum[2] because he was wanted for “burglary, kidnapping, domestic violence and criminal endangering.”[3]  Surprisingly, Mr. Marcum commented on the post and stated, “I ain’t tripping half of them don’t even know me.”[4]  Subsequently, the Sheriff’s Office responded with “If you could stop by the Sheriff’s Office, that’d be great,”[5] and then stated, “Hey, it doesn’t hurt to ask.”[6]  On Twitter, the Sheriff Richard K. Jones posted a picture of a jail cell with the caption “Hey Andrew Marcum we’ve got your room ready…”[7]  The following day the Sheriff’s Office arrested Mr. Marcum.[8]

Posts like the one by Butler County Sheriff’s Office are not uncommon. More and more police stations are utilizing social media websites, like Facebook and Twitter to catch criminals and request tips.[9]  These social media posts are essentially “electronic versions of traditional wanted posters,” and often include “a photo, description of the individual and crime, and a contact number for tips.”[10]  In order to protect the anonymity of tipsters and informants, law enforcement departments encourage the community to provide information through phone calls or emails and not directly through comments.[11]

In New York, Illinois, Colorado, and even Canada, police departments use “#warrantwednesday” on social media to catch criminals, while Florida and Indiana utilize “Turn ’em in Tuesday.”[12]  In 2014, New York State Police arrested fifteen as a result of #warrantwednesday posts and in total, arrested twenty-nine people as a result of tips received through social media.  According to Darcy Wells of the New York State Police, there is a spike in Facebook page activity on Warrant Wednesdays, and “Twitter town halls have increased the agency’s Twitter followers—which, ultimately, can help solve crimes and promote public safety.[13]

According to a study by LexisNexis, law enforcement “increasingly [rely] on social media tools to prevent crime, accelerate case closures and develop a dialogue with the public.”[14]  Although it is not rare for police to use social media to catch criminals, this method seems to be far less controversial.  In the past, police departments have faced criticism for using Facebook to catch criminals by creating fake profiles and gaining access to private information through a user’s Facebook friends.[15]  Ultimately, this method may be more effective in creating goodwill and promoting cooperation between citizens and the police.

 

[1]Tracy Bloom, Wanted Man Arrested in Ohio After Responding to Sheriff’s Facebook Post About Him, KTLA5 (Mar. 4, 2015, 8:55 AM), http://ktla.com/2015/03/04/wanted-man-arrested-in-ohio-after-responding-to-sheriffs-facebook-post-about-him/

[2] Bloom, supra note 1.

[3] Faith, Karimi, Ohio fugitive nabbed after taunting authorities on Facebook, CNN, http://www.cnn.com/2015/03/05/us/ohio-facebook-post-arrest/ (last updated Mar. 5, 2015, 9:46 AM).

[4] Bloom, supra note 1; see also Karimi, supra note 3.

[5] Bloom, supra note 1; see also Karimi, supra note 3.

[6] Bloom, supra note 1.

[7] Bloom, supra note 1; see also Karimi, supra note 3.

[8] Bloom, supra note 1; see also Karimi, supra note 3.

[9] See Judy Sutton Taylor, #WarrantWednesdays: Law enforcement jumps on a social media trend to help find criminals, ABA Journal, Mar. 2015, at 9, available at http://www.abajournal.com/magazine/article/law_enforcement_jumps_on_warrantwednesdays_trend_to_help_find_criminals/?utm_source=maestro&utm_medium=email&utm_campaign=tech_monthly (the title of the online version is Law enforcement jumps on #WarrantWednesdays trend to help find criminals).

[10] Taylor, supra note 9, at 9.

[11] See Taylor, supra note 9, at 9–10.

[12] See Taylor, supra note 9, at 10.

[13] Taylor, supra note 9, at 9–10.

[14] Lexis Nexis, Social Media Use in Law Enforcement:Crime prevention and investigative activities continue to drive usage 3 (2014), available at http://www.lexisnexis.com/risk/downloads/whitepaper/2014-social-media-use-in-law-enforcement.pdf.

[15] See Heather Kelly, Police embrace social media as crime-fighting tool, Facebook, CNN, http://www.cnn.com/2012/08/30/tech/social-media/fighting-crime-social-media/ (last updated Aug. 30, 2012, 5:23 PM).

 

Blog: Uber: Who Owns Whom?

By: Jillian Smaniotto, Associate Manuscripts Editor

On Wednesday, March 11, U.S. district court judges in California denied motions for summary judgment in two separate cases involving Uber and Lyft that could mean massive changes in the rapidly developing on-demand services market.[1]  Both cases will go to jury trial.[2]

Both Uber and Lyft are the subjects of suits brought by drivers seeking classification as employees, claiming they have been misclassified as independent contractors.[3]  The classification of these drivers as employees could lead to massive changes to the existing Uber and Lyft schemes, as the companies could then be held responsible for reimbursing drivers for costs incurred incidental to providing rides arranged via the Uber and Lyft services.[4]

These suits come at an interesting time as labor disputes between drivers and rideshare companies have been on the rise of late.  Recently, Uber came under fire in January for claiming to pay its drivers in New York city roughly twenty-five dollars per hour, while reports showed that estimate to be inaccurate, with the figure typically closer to nineteen dollars per hour.[5]  As a result, drivers have begun to move away from working exclusively for one service or the other, choosing instead to combine apps in order to take advantage of the differences.[6]  For example, drivers take advantage of Uber’s surge system—whereby fares rise based on demand—by using Lyft and turning off the Uber app during slow periods, and switching to Uber during surge periods.[7]  Some feel this is the best way to combat the expense of driving for one of these services, as drivers are responsible for gas, insurance, maintenance, and sometimes the purchase of a new-enough vehicle—all necessary expenses for Uber and Lyft drivers.[8]

In the cases brought against Uber and Lyft in the Northern District of California, juries will decide whether drivers have been correctly characterized as independent contractors.[9]  Drivers for both Uber and Lyft, seeking class-action status, argue that they are subject to the control of their respective services, as their fares are set and they are subject to termination for failure to follow certain rules.[10]  Uber and Lyft argue that their drivers are better classified as independent contractors because drivers have the flexibility to set their own schedules and choose their passengers.[11]

The ultimate outcomes in these cases may have far-reaching impacts on ridesharing services, as well as on other on-demand service companies and tech startups.[12]  Classification of Uber drivers—or perhaps on-demand grocery shoppers or housemaids—as employees would ultimately mean that these services would be required to pay for employee benefits and pay into state unemployment programs, clearly increasing overhead costs.[13]  Such changes could stifle the burgeoning startup on-demand service market, especially as the more traditional service sector has begun adopting similar customer-friendly policies.[14]

It is fitting that the District Court judges ruled that this issue is not one appropriate for summary judgment as it is clear that a reasonable jury may reasonably decide either way.  The platforms supporting these services are still evolving, and the regulation has yet to catch up; instead, juries will be “handed a square peg and [be] asked to choose between two round holes.”[15]

 

[1] See Ellen Huet, Juries to Decide Landmark Cases Against Uber and Lyft, Forbes (Mar. 11, 2015, 8:21 PM), http://www.forbes.com/sites/ellenhuet/2015/03/11/lyft-uber-employee-jury-trial-ruling/.

[2] See id.

 [3] See Katy Steinmetz, Uber, Lyft Lawsuits Could Spell Trouble for the On-Demand Economy, Time (Mar. 12, 2015, 2:11 PM), http://time.com/3742608/uber-lyft-lawsuits/.

 [4] See Huet, supra note 1; Steinmetz, supra note 3.

 [5] See Brian Fung, Why Drivers are Winning the Labor War Between Uber and Lyft, Wash. Post (Mar. 3, 2015), http://www.washingtonpost.com/blogs/the-switch/wp/2015/03/03/why-drivers-are-winning-the-labor-war-between-uber-and-lyft/.

[6] See id.

[7] See id.

[8] See id.

[9] See Steinmetz, supra note 3.

[10] See Huet, supra note 1; see also Ellen Huet, How Uber’s Shady Firing Policy Could Backfire on the Company, Forbes (Oct. 30, 2014, 10:00 AM), http://www.forbes.com/sites/ellenhuet/2014/10/30/uber-driver-firing-policy/ (describing how Uber drivers may be “deactivated” under no clear policy and with little to no warning).

Uber_ride_Bogota_(10277864666)[11] See Huet, supra note 1.

[12] See Bob Egelko, Court: Juries to Decide if Uber, Lyft Drivers Are Employees, SFGate (Mar. 11, 2015, 6:42 PM), http://www.sfgate.com/bayarea/article/Juries-to-decide-whether-Uber-Lyft-drivers-are-6128899.php.

[13] See id.; Huet, supra note 1.

[14] See, e.g., Taylor Soper, Taxi Companies Adopt New Apps to Keep Up with Uber, Lyft in Seattle, GeekWire (Mar. 9, 2015, 3:40 PM), http://www.geekwire.com/2015/taxi-companies-adopt-new-apps-to-keep-up-with-uber-lyft-in-seattle/.

[15] Tim Fernholz, Uber and Lyft Drivers Want To Be Paid Like Employees, Not Contractors. But What if They Are Neither?, Quartz (Mar. 12, 2015), http://qz.com/361293/uber-and-lyft-drivers-want-to-be-paid-like-employees-not-contractors-but-what-if-they-are-neither/.

 

Blog: The New Four Walls of the Workplace

social-media-488886_640By: Micala MacRae, Associate Notes and Comments Editor

The Supreme Court has recognized workplace harassment as an actionable claim against an employer under Title VII of the Civil Rights Act of 1964.[1]  The rise in social media has created a new medium through which workplace harassment occurs.  Courts are just beginning to confront the issue of when social media harassment may be considered as part of the totality of the circumstances of a Title VII hostile work environment claim.  Traditionally, harassment has occurred through face-to-face verbal and physical acts in the workplace.  However, the changing nature of the workplace has continued to expand with the rise of new technology, which allows employees to stay connected to the work environment at different locations outside the physical boundaries of the office.  Harassment has moved beyond the physical walls of the workplace to the virtual workplace.  The broadening conception of the workplace and increasing use of social media in professional settings has expanded the potential employer liability under Title VII.

Social media has become a powerful communication tool that has fundamentally shifted the way people communicate.  Employers and employees increasingly utilize social media and social networking sites.[2]  While companies have turned to social media as a way to increase their business presence and reduce internal communication costs, there has been the consequence of increased social media harassment.  Although social media and social networking sites are not new forms of communication, their legal implications are just now coming into focus.[3]  Several cases have addressed hostile work environment claims stemming from other forms of electronic communication, there are few addressing claims based on social media communications.[4]

The New Jersey Supreme Court, in Blakey v. Continental Airlines, Inc., was one of the first courts to consider whether an employer is responsible for preventing employee harassment over social media.[5]  In Blakey, an airline employee filed a hostile work environment claim arising from allegedly defamatory statements published by co-workers on her employer’s electronic bulletin board.[6]  The electronic bulletin board was not maintained by the employer, but was accessible to all Continental pilots and crew members.[7]  Employees were also required to access the Forum to learn their flight schedules and assignments.[8]

The court analyzed the case under a traditional hostile work environment framework, concluding that the electronic bulletin board was no different from other social settings in which co-workers might interact.[9]  Although the electronic bulletin board was not part of the physical workplace, the employer had a duty to correct harassment occurring there if the employer obtained a sufficient benefit from the electronic forum as to make it part of the workplace.[10]  The court made clear that an employer does not have an affirmative duty to monitor the forum, but that liability may still attach if the company had direct or constructive knowledge of the content posted there.[11]  The court limited consideration of social media harassment to situations where the employer derived a benefit from the forum and it could therefore be considered part of the employee’s work environment.[12]

Workplace harassment is not longer limited to the traditional four walls of the workplace.  As technology and the boundaries of the workplace have changed, courts have struggled to modernize their framework for assessing hostile work environment claims under Title VII.  These problems will only become exacerbated as society continues to embrace social media throughout our daily lives and employers continue to integrate social media into their business practices.

 

[1] See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64-67 (1986) (finding that workplace harassment based on individual’s race, color, religion, sex, or national origin is actionable under Title VII of the Civil Rights Act).

[2] Jeremy Gelms, High-Tech Harassment: Employer Liability Under Title VII for Employee Social Media Misconduct, 87 Wash. L. Rev. 249 (2012).

[3] See, e.g., Kendall K. Hayden, The Proof Is in the Posting: How Social Media Is Changing the Law, 73 Tex. B.J. 188 (2010).

[4] Id.

[5] Jeremy Gelms, High-Tech Harassment: Employer Liability Under Title VII for Employee Social Media Misconduct, 87 Wash. L. Rev. 249 (2012).

[6] Blakey v. Continental Airlines, Inc., 751 A.2d 538 (N.J. 2000).

[7] Id. at 544.

[8] Id.

[9] Id. at 549.

[10] Blakey, 751 A.2d at 551.

[11] Id.

[12] Id.

Blog: The New Meaning of Back Seat Driving

2014-03-04_Geneva_Motor_Show_1186By: Peyton Stroud, Associate Notes and Comments Editor

Are we there yet?  The common adage of road trips has a whole new meaning with the advent of driverless cars.  Imagine a world where the front seat driver can face the backseat passengers, with the car driving itself down the highway.  As of this past January, this dream is becoming a reality.  Automotive giants such as BMW, Audi, and Mercedes-Benz unveiled prototypes of self-driving technologies in the recent 2015 Consumer Electronics Show (CES).[1]  These new vehicle models function autonomously while allowing its passengers to sit back and relax.  Industry experts expect these driverless vehicles to be on the road between 2017 and 2020.[2]

Many current models of cars are already featuring some self-driving technologies including automatic braking systems, adjustable cruise controls, and 360° cameras capable of stopping collisions while at low speeds.[3]  However, this year’s CESs brought more to the table than ever before.  During this year’s CES, Audi unveiled its self-driving car, nicknamed “Jack,” using its system known as the company’s Piloted Driving system.[4]  “Jack” drove an astounding 560 miles to the CES, more than any driverless car has driven before.  Its state of the art system incorporates a series of sensors and laser scanners allowing the car to drive itself in speeds of up to 70 mph.[5]  The Piloted Driving system is intended to be used for highway driving and does not work as well in urban environments, where drivers need to be at the wheel.[6]  Similarly, Mercedes-Benz introduced its driverless model called the Mercedes-Benz F105 Luxury in Motion.[7]  Its new features include a self-driving technology and a zero carbon emissions system, but most notably a new interior design.[8]  The new design allows for the vehicle’s front seats to swing around and face backwards while the vehicle drives its passengers on the highway.[9]

Other technology developers are joining forces with car manufactures to help advance this technology.[10] Nvidia, a large computer chip manufacturer, has introduced the Tegra X1 chip equipping vehicles with deep neural learning, which allows for recognition of pedestrians, cyclists, and other vehicles. More technological innovations on the horizon include systems setting a predetermined route, more adjustable cruise controls, and self-parking technologies.[11]

Legally, self-driving smart cars could pose some significant problems in both the regulatory and data privacy realm.[12]  In a regulatory sense, there are currently no transportation laws regarding self-driving cars.[13]  Furthermore, others remain weary of the “data collection” required by the cars. [14]  However, the most profound legal implication could be liability ridden – Who is responsible when something goes wrong?  More specifically, who is liable if a self-driving cars hits and kills someone?  Who is responsible for the parking ticket when the car did not recognize a no parking sign?[15]  Only four states and the District of Columbia have addressed laws regarding self-driving vehicles.[16]  Some of these states have passed laws allowing manufacturers solely for testing purposes.[17]  In an effort to predict the legal implications of these new cars, lawyers look to current liability laws for guidance.[18]  For example, in cases of parking tickets, the owners of the car will be liable.[19]  In cases of injury, product’s liability law will most likely govern cases of injury thereby allowing the victim to sue both the owner of the car and also the car’s manufacturer.  According to Professor John Villasenor, “product liability law, which holds manufacturers responsible for faulty products, tends to adapt well to new technologies.”[20]  Furthermore, Sebastian Thrun, inventor of driverless cars, opines that these driverless cars could help in reconstructing accidents and making assignment of blame more clear-cut.[21]  In his view, the trial lawyers are the ones in trouble.[22]

However, criminal penalties pose a more significant problem than civil penalties.[23]  Since criminal law centers around the intent of the perpetrator, it will be difficult to figure out how to adapt these laws to technology because robots cannot be charged with a crime.[24]  Further, “the fear of robots” and of a machine malfunctioning raise concerns for the American public.[25]  However, it seems as if Americans are willing to take the risk.  According to the Pew Research Center, nearly half of Americans would ride in a driver-less car.[26]  Time will tell if these self-driving cars will endure public scrutiny.

 

[1] See Steve Brachmann, Self-driving Cars and Other Automotive Technologies Take Center Stage at CES, IPWatchdog.com (Jan. 11, 2015), http://www.ipwatchdog.com/2015/01/11/self-driving-cars-center-stage-at-ces/id=53480/.

[2] Bill Howard, Self-driving Cars Are More Than A Promise, Extreme Tech (Jan. 12, 2015, 11:45 AM), http://www.extremetech.com/extreme/197262-its-2015-self-driving-cars-are-more-than-a-promise.

[3] Brachmann, supra note 1.

[4] Id.

[5] Brachmann, supra note 1.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] See Howard, supra note 3.

[11] See id.

[12] See id.

[13] See id.

[14] Id.

[15] See Claire Cann Miller, When Driverless Cars Break the Law, N.Y. Times (May 13, 2014), available at http://www.nytimes.com/2014/05/14/upshot/when-driverless-cars-break-the-law.html?_r=0&abt=0002&abg=0.

[16] See id.

[17] See id.

[18] See id.

[19] See id.

[20] Miller, supra note 11 (quoting John Villasensor, Products Liability and Driverless Cars: Issues and Guiding Principles for Legislation, Brookings (Apr. 2014), available at http://www.brookings.edu/~/media/research/files/papers/2014/04/products%20liability%20driverless%20cars%20villasenor/products_liability_and_driverless_cars.pdf).

[21] See Miller, supra note 11.

[22] See id.

[23] Id.

[24] See id.

[25] Miller, supra note 11.

[26] See id.

Blog: Is it a Bird? A Plane? No, it's a Drone

By: Arianna White, Associate Staff

As a child, I spent many afternoons with my father and his two helicopter-enthusiast brothers.  We would go to the park and launch remote controlled helicopters and rockets in to the sky.  We flew the large, complex kind of helicopters that could drop packages from great heights and do flips while in the air.  Although craft helicopters are less in vogue today than they were twenty years ago, other small-scale flying devices have recently returned to popular consciousness.  I’m talking, of course, about drones.

When thinking about drones, many people imagine their military application.  Otherwise known as predator drones and Unmanned Combat Aerial Vehicle (UCAV), these machines are used to perform precise strikes of enemy targets.[1]  The use of these drones relies on information gathered by intelligence agencies to identify targets, and a remote operator who controls the drone’s movements.[2]

Beyond their common conception, however, the term drone refers to a larger class of Unmanned Aircraft Systems that have both public and private applications in the United States.[3]  Many Police departments, like the New York City Police Department, use drones to survey the public under the pretext that drones are intended to “check out people to make sure no one is… doing anything illegal.”[4]

Corporations and personal enterprises have also determined that drones can serve in varied, but important roles.  Amazon, for example, is interested in using drones for package delivery and has asked the Federal Aviation Administration (FAA) for permission to develop and test a drone program.[5]  While the FAA has yet to issue the necessary license to Amazon, the company persists in its request that the agency permit its use of drones.[6]

Mexican drug cartels have also developed drones to deliver packages, although their program follows a decidedly less legal route than Amazon’s.[7]  On January 19, 2015, a drone carrying nearly six pounds of methamphetamine crashed in a Mexican city along the Mexico-US border.[8]  In early 2015, a South Carolina man received a fifteen-year prison sentence for his attempt to deliver contraband to a South Carolina Prison.[9]  The crashed drone carried marijuana, cell phones and tobacco on to the prison’s grounds, although the delivery was never received by any of the prison’s inmates.[10]

Given the proliferation of unmanned aircraft, both sophisticated and home made, the FAA lacks a sophisticated policy that effectively regulates their use.  While the “current FAA policy allows recreational drone flights in the U.S.[, it] essentially bars drones from commercial use.”[11]  Although industry analysts expected the FAA to publish its proposed rules by the end of 2014 and begin the notice and comment period, the agency did not meet that goal.[12]  In fact, Gerald Dillingham, the GAO ‘s director of civil aviation said that the “consensus of opinion is the integration of unmanned systems will likely slip from the mandated deadline [and not be finalized] until 2017 or even later.”[13]

During the 112th legislative session, Congress passed the FAA Modernization Act of 2012.[14]  The act was designed to, among other non-drone-related purposes, “encourage the acceleration of unmanned aircraft programs in U.S. airspace.”[15]  Agency guidelines, in place since 1981, currently control the use of personal unmanned aircraft.[16]  Of these, individuals are prohibited from “flying above 400 feet, near crowds, beyond the line of sight or within five miles of an airport.”[17]  These types of guidelines seem reasonable and appropriate to regulate small scale, personal model aircraft and drone use.

However, there is a glaring need for federal policy that addresses and regulates the commercial use of drones.  In the absence of such a policy, local governments have begun to fill the gaps that the FAA left behind.  According to the New York Times, “At least 35 states and several municipalities have introduced legislation to restrict the use of drones in some way.”[18]  These different laws serve various functions, including governing the permissible police uses of drones, defining what type of use constitutes unlawful surveillance, and determining the punishments allowable for violations of the particular law.[19]  By allowing individual local governments to determine their own rules, in the absence of a federal standard, the FAA has missed the opportunity to both promote nationwide responsible drone use and ensure their safe, uniform use across the country.  While other countries, like Canada, Australia, and the United Kingdom have already begun enacting laws that allow commercial use of drones,[20] the United States is still stuck in 2012.

 

[1] http://www.nytimes.com/2012/05/01/world/obamas-counterterrorism-aide-defends-drone-strikes.html?_r=1

[2] http://www.nytimes.com/2012/05/01/world/obamas-counterterrorism-aide-defends-drone-strikes.html?_r=1

[3] Federal Aviation Administration. Unmanned Aircraft Systems. https://www.faa.gov/uas/.

[4] https://www.aclu.org/files/assets/protectingprivacyfromaerialsurveillance.pdf

[5] www.cnet.com/news/amazon-asks-faa-to-let-it-ramp-up-drone-developments/

[6] http://www.regulations.gov/#!documentDetail;D=FAA-2014-0474-0014

[7] http://thetequilafiles.com/2014/07/10/mexican-cartels-building-drones-to-traffic-drugs-into-the-us/

[8] http://www.latimes.com/world/mexico-americas/la-fg-mexico-meth-drone-20150121-story.html

[9] http://www.greenvilleonline.com/story/news/crime/2015/01/20/man-receives-years-flying-drone-sc-prison/22053651/

[10] http://www.washingtonpost.com/news/post-nation/wp/2014/07/31/a-delivery-drone-carrying-marijuana-cell-phones-and-tobacco-crashed-outside-of-a-s-c-prison/

[11] http://www.wsj.com/articles/drone-flights-face-faa-hit-1416793905

[12] http://www.bloomberg.com/news/2014-12-31/faa-fails-to-meet-2014-goal-for-proposed-drone-regulations.html

[13] http://www.washingtonpost.com/blogs/the-switch/wp/2014/12/10/the-faa-wont-make-up-its-mind-on-drone-rules-until-2017-at-the-earliest/

[14] https://www.congress.gov/112/plaws/publ95/PLAW-112publ95.pdf

[15] http://www.npr.org/2012/04/17/150817060/drones-move-from-war-zones-to-the-home-front

[16] http://www.nytimes.com/2014/12/07/sunday-review/things-to-consider-before-buying-that-drone.html

[17] http://www.nytimes.com/2014/12/07/sunday-review/things-to-consider-before-buying-that-drone.html, http://www.faa.gov/uas/publications/model_aircraft_operators/

[18] http://www.nytimes.com/2014/12/07/sunday-review/things-to-consider-before-buying-that-drone.html

[19] http://www.ncsl.org/research/civil-and-criminal-justice/2014-state-unmanned-aircraft-systems-uas-legislation.aspx

[20] http://www.bostonglobe.com/opinion/editorials/2014/12/07/faa-flying-blind-drone-regulation/OO4HIaE4HQv037gJ2PbXyL/story.html

Who will take care of your social media accounts?

Blog: My Executor Has Never Used the Internet: Estate Planning and Digital Property

By Associate Editor Kevin McCann

In 2007, a devoted World of Warcraft player decided it was time to put down his virtual crossbow and axe and sell his player account. Given the amount of time put into leveling up the abilities and gear of the character, the account was in high demand and sold for 7,000 Euros (approximately $9,000). What if before the player decided to sell this he experienced an unfortunate real life death? Most likely there would be no provision in his last will and testament stating what to do with this asset, and the account would have been deleted and the potential money lost.

While this is an extreme example of protecting a digital asset, estate planners and lawyers indicate that few people give the new reality of digital assets and online accounts consideration when drafting their wills. There is a range of issues to contemplate involving electronically stored items, such as preserving online photos, projects and personal records to how you would want your family to manage your social media accounts. A survey by McAfee revealed that U.S. consumers value their digital assets, on average, at nearly $55,000, with approximately $19,000 attributed to personal memories (photographs and videos) alone. A living person would certainly want to determine the distribution of these electronically stored personal memories just as if they were photos in an attic.

In addition, social media websites such as Facebook and Twitter now have deceased user policies. Both policies allow interested parties to select one of two options: either delete the user account entirely or save the account in order to memorialize the deceased and allow others to interact with his or her preserved account. (For an interesting look at the differences between the two policies, see http://news.cnet.com/8301-27076_3-20013219-248.html). One could see a situation where a person would want his account deleted to save his family embarrassment, or the opposite situation where a person would want his family to continue to interact with his account through the grieving process after his death. This would be another consideration to contemplate when drafting a will.

Several states have enacted legislation that pertains to post-death access of digital accounts. For instance, a New Jersey bill was introduced in June of this year that would grant the executor or administrator of an estate the power to take control of any account of the deceased person for social networking, blogging, or e-mail service websites. However, many of the states’ legislation specify that the deceased must have designated the representative in writing prior to the death. The U.S. General Services Administration recommends people set up a “social-media will,” and even go as far as naming a separate “digital executor” who is more up to speed on technology innovations and is more qualified to oversee the administration of the deceased’s digital assets. In addition, estate planners advise that the probate process would take considerable less time if the devisee were to include in his will a list of all accounts, passwords, and security question answers. Otherwise the executor would have to go through the process of submitting death certificates and relationship authentication to each of the websites.

The internet has changed the way society communicates and expresses itself, and various legal issues arose with this modernization. The protection of online assets at death is now a growing concern, with states just beginning to recognize the need for legislation. As the internet continues to reinvent itself with new services to better connect the world, so to must the estate planning process strive to keep up with these innovations.

 

Additional Resources:

Wall Street Journal Article on issue

Chicago tribune article on the issue

List of online services that are designed to help someone plan for probate process of digital assets.

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