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CCH GUIDE TO COMPUTER LAW

for products and services within and outside the game environment. Some gamers are even hiring workers in other countries to play the game for them, generating credits that are then sold. How will an accumulation of credits by a decedent be treated in estate tax valuations and for purposes of allocating shares of the estate to heirs. More important to eager gamer-heirs, which one will inherit the game credits?

3. Where are the digital assets, who can access them and what passwords or other access controls are required? Suffice it to say that if a digital asset is encrypted or otherwise protected by strong passwords or the like, the asset is effectively lost without the tools that would permit access. This is not just a problem for assets covered by the will—it extends to information needed for the heirs to continue to use the affected accounts and services. For example, if the keeper of the family’s digital checkbook, or the person paying bills online, utilizes a password that hasn’t been shared, how will the family get at that information short of court orders (assuming the password can be broken)?

Even assuming that the heirs are able to overcome the technological measures, if the assets are copyrighted and protected by technological measures, circumventing those measures may violate the Digital Millennium Copyright Act. Decedents can shield their heirs from this situation by granting permission for circumvention of the measures in the will (assuming decedent added the measures). Who would sue, you say? Siblings fighting over what to do with the protected assets might well find suit a handy way of preventing the executor (and the competing heir) from

obtaining the asset.

Other Issues There will be other new problems to solve

. For example,

assume the family matriarch scanned into an online archive 50 years of family photos (accessible only by her registered family members). No one misuses the archive because of the force of her personality (or from fear of being cut out of her will). But after she dies, various family members use their

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access to start selling pictures to earn money or embarrass family members with whom they are feuding. Issues that did not arise during her life will need to be addressed after her death: should she have written “site terms of use” restricting certain behaviors? If niece #10 has hated a particular picture for years but never had the nerve to say so, can she demand removal of the picture? What privacy, intellectual property or publicity rights exist that were not voiced during life, but which rankle after death?

There are real world implications to these issues as well. Decedents who fail to realize that their executor might plow through all of their emails unless they leave other instructions, may not leave the memories they had intended. Consider,

A decedent’s Hotmail account (such as a personal, not a work, email account) containing commercial communications the executor should not see; complaints about family members, children or spouses that decedent didn’t intend anyone but the recipient to see; revelations about things the family wasn’t supposed to know (e.g., agony over illness or evidence of an affair); and A decedent’s shopping account history (e.g., online bookstore account showing purchase of “How to Commit Suicide;” Tiffany online account showing jewelry purchases of which the spouse was not aware…).

Our point? We think that a little, actually a lot, of planning is in order in this digital age. Digital assets are owned by every family, not just wealthy or famous families. Many jurisdictions provide special privileges to executors and personal representatives or heirs permitting access to most assets. Even if those rules apply to all digital assets (perhaps a bold assumption), that access may cover ground the decedent might not have wanted covered. In addition, third parties bound by privacy, identity theft and other new laws or concepts, might have something to say about whether those assets really will be made available to the executor. These issues are best handled ahead of time, and planning is critical.

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