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1102 CARDOZO LAW REVIEW [Vol. 38:1099
assets at death exists.
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For purposes of this Article, I focus on the
property interest in digital assets to control what happens to one’s
digital assets and accounts at death. The ultimate fate of an individual’s
digital assets is unknown, but an alarming trend in digital asset
contracts is to terminate digital asset accounts at death and prohibit the
transfer of assets in the account to an individual’s estate.
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This Article
focuses on the troubling implications of contracts limiting the right to
devise digital assets, and it argues that users of digital assets, in light of
our theories and methodologies used to define property, have property
interests that allow a user to determine how an account should be
treated upon his or her death. For purposes of this Article, I divide
digital assets into three categories: (1) e-mail and social media
accounts;
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(2) reward points earned by participating in some retail
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Natalie M. Banta, Inherit the Cloud: The Role of Private Contracts in Distributing or
Deleting Digital Assets at Death, 83 F
ORDHAM L. REV. 799 (2014); David Horton, Contractual
Indescendibility, 66 H
ASTINGS L.J. 1047 (2015).
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See Microsoft Services Agreement, MICROSOFT (July 15, 2016), http://windows
.microsoft.com/en-us/windows-live/microsoft-services-agreement [hereinafter Microsoft
Services Agreement] (“We may assign these Terms, in whole or in part, at any time without
notice to you. You may not assign your rights or obligations under these Terms or transfer any
rights to use the Services.”); MileagePlus Rules, U
NITED AIRLINES, http://www.united.com//
web/en-US/content/mileageplus/rules/default.aspx (last visited Feb. 25, 2016) [hereinafter
MileagePlus Rules, U
NITED AIRLINES] (“Accrued mileage and certificates do not constitute
property of the member and are not transferable other than as authorized and/or sponsored by
United.”); SkyMiles Membership Guide, D
ELTA 29, http://www.delta.com/content/dam/delta-
www/pdfs/skymiles/SM_MemGuide.pdf (last updated Sept. 15, 2014) [hereinafter Delta
Skymiles Membership Guide] (“Miles are not the property of any member. Except as specifically
authorized in the Membership Guide and Program Rules or otherwise in writing by an officer
of Delta, miles may not be sold, attached, seized, levied upon, pledged, or transferred under any
circumstances, including, without limitation, by operation of law, upon death, or in connection
with any domestic relations dispute and/or legal proceeding.”); Statement of Rights and
Responsibilities, F
ACEBOOK, https://www.facebook.com/legal/terms (last updated Jan. 30, 2015)
[hereinafter Facebook Terms of Service] (“You will not transfer your account (including any
Page or application you administer) to anyone without first getting our written permission.”);
Twitter Terms of Service, T
WITTER, https://g.twimg.com/policies/TheTwitterUserAgreement_
1.pdf (last visited Feb. 25, 2016) [hereinafter Twitter Terms of Service] (“Twitter gives you a
personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software
that is provided to you by Twitter as part of the Services.”); Yahoo Terms of Service, Y
AHOO!,
http://info.yahoo.com/legal/us/yahoo/utos/en-us (last updated Mar. 16, 2012) [hereinafter
Yahoo Terms of Service] (“No Right of Survivorship and Non-Transferability. You agree that
your Yahoo account is non-transferable and any rights to your Yahoo ID or contents within
your account terminate upon your death. Upon receipt of a copy of a death certificate, your
account may be terminated and all contents therein permanently deleted.”).
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Laura Rosenfeld, What’s the Most Popular Email Service in the World?, TECH TIMES
(Sept. 17, 2014, 1:15 PM), http://www.techtimes.com/articles/15802/20140917/most-popular-
email-service-in-the-world.htm (listing Gmail, Yahoo Mail, Outlook, and AOL Mail as the
most popular e-mail providers); Faiza Sareah, Interesting Statistics for the Top 10 Social Media
Sites, S
MALL BUS. TRENDS (July 26, 2015), http://smallbiztrends.com/2015/07/social-media-
sites-statistics.html (listing Facebook, Twitter, LinkedIn, Google+, YouTube, Pinterest,
Instagram, Tumblr, Flickr, and Reddit).