Death

Dealing with Digital Death

Through the use of email, social media, and other online accounts, our lives and social interactions are increasingly mediated by digital service providers.  As the volume of these interactions increases and displaces traditional forms of communication and commerce the question of what happens to those accounts, following the death of the user, takes on greater significance.

Should the relatives or heirs of a deceased Facebook user have the ‘right’ to access, take control of, or even delete the account?  Some of you reading this will recoil in dread at such a thought, quickly remembering all of those digital indiscretions and private messages you would prefer to assign to oblivion but never got around to deleting.  Other readers may remember a friend, no longer alive today, and will possibly turn to social media later to seek out a picture and recall a shared memory.

Reconciling interests

Of course while such personal and emotional interests play an important role in the emerging debate on how to handle the digital remains of deceased persons, other considerations, such as the possible economic value stored in accounts that ‘trade’ virtual property and currency or facilitate real world transactions, cannot be ignored.  Neither should it be forgotten that, in time, access to these digital accounts will also be sought after by historians and researchers.  Will these digital materials of history be locked behind passwords with access dependent on the goodwill of internet-based service providers?

Terms of service agreements

Part of the answer to these questions is to be found in the terms of service (a legally binding contract) which most of us click ‘I agree to’, without ever reading. Many service providers have specific clauses or policies relating to the death of an account holder.  For example, Google’s Inactive Account Manager permits subscribers of their services to make arrangements for the transfer, or deletion, of the data stored in their Google accounts following death. Unlike Google, no other major service provider gives users an in-service option of nominating heirs who can subsequently claim data from accounts.  By signing up with Yahoo! 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”.

Facebook ‘memorialize’ a deceased user’s account, which means the Facebook profile is frozen, limiting visibility to those who could see it while the account holder was alive.   Content on the profile cannot be modified in any way.  However, depending on the privacy settings of the deceased person’s account, friends can share memories on the memorialized “Timeline”.   Should a surviving family member wish to access the content in a Facebook account they must follow what Facebook describe as ‘a lengthy process’ which ultimately requires a court order.

Digital estate planning services

However, common to all service providers is a policy not to hand-over a password for a decedent’s account.  To overcome these blunt contractual and technical defaults, digital estate planning services have emerged.  Despite the grand title, these are often no more than password sharing schemes. LegacyLocker.com and SecureSafe offer further services but ultimately depend on a user maintaining a list of accounts and associated passwords. API based services such as Perpetu are also emerging.

Of course a user may plan ahead and share their password with family and friends, while alive, or leave passwords in a will.  Unfortunately sharing passwords and permitting others to use your account is very often prohibited by the terms of service agreement. Furthermore, accessing or modifying content in a deceased person’s account without the knowledge of the service provider may constitute a criminal offence in some jurisdictions.

The legal route

Surviving families have also turned to the courts, but with mixed results.  The Ellsworth family, whose son Justin was killed in Iraq in 2004, won a probate order against Yahoo! to obtain copies of the contents of an e-mail account.  However, a UK family was refused an order, by a California court, to compel Facebook to provide the contents of their deceased daughter’s account, due to a US federal law enacted to protect privacy in electronic communications.

A number of US states (ConnecticutIdahoIndianaNevadaOklahomaRhode Island and Virginia) have laws incorporating certain online accounts or information into the probate process.  However, little consistency exists in the scope of these laws or the powers they create.  Furthermore, these state laws may be in conflict with US federal laws. In an attempt to address these matters, the Uniform Law Commission in the US are currently drafting a Uniform Fiduciary Access to Digital Assets Act.

Emerging solution

Empowering users to make active choices in relation to their digital remains should be a fundamental element of any solution.  However, the creation by legislators of a default position where digital remains are automatically transmissible at death, unless a valid will provides otherwise, may not be the best solution.  Does each new account require an amendment to a will?  Are children, who in many jurisdictions cannot create a valid will, to be denied post-mortem privacy in relation to their accounts?

A creative solution is required that provides for individual choice on whether these accounts and contents are to re-used, deleted or distributed, following death.  However, reconciling the business needs of service providers with the sentimental and economic interests of surviving family and friends, and the public interests involved in future access to these materials of history, for heritage institutions and researchers, will not be easy.

The policy debate in relation to your digital legacy is only beginning.

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A earlier version of this post first published on OUPblog: https://blog.oup.com/2013/10/dealing-with-digital-death/

The image surfed too long! by Adi Setiawan is reproduced under CC License  (BY-NC-SA 2.0)

 

Introducing the law of digital remains

Introduction


Dealing with the aftermath of someone’s death is always a difficult and sensitive issue.  In recognition of this, society has developed various rites, rituals and norms to aid the family and loved ones to deal with the physical remains and redistribute the possessions of the deceased.  This involves balancing an innate desire to respect the dignity of the deceased with the needs and interests of the surviving family and wider community.

In the pre-digital age laws adequately reflected these rites and norms.  For example, personal mementos, photographs, letters, scrapbooks and meaningful tokens that hold sentimental value pass by default along with the physical property they are bound up in.  Succession law reflects these norms, with personal property passing by will or the rules of intestacy.  The unauthorised interference by unconnected third parties with a deceased’s personal items was generally precluded as they were bound up in property that would remain within the home or in the possession of friends or family.  The digital universe has changed this.

Digital Remains are Different

Digital technology is detaching personal possessions from the physical plane, where property law of all sorts had found definition.  Letters now take the form of e-mails and, instead of scrapbooks with pictures or news clippings of old friends and memories, social network connections detail daily interactions and events.  There is no longer a physical artifact to possess or in which to claim ownership.  One’s digital remains are locked behind passwords; therefore, without access, these remains and their economic or sentimental value are lost to the loved ones of the deceased.

This phenomenon of the digital age has led to novel problems for online service providers.  Social network services are gradually being turned into digital memorial sites.  Heirs and family members of the deceased increasingly seek access to or control over Internet-based accounts.  Some service providers deny access, citing concerns for the privacy of the deceased; others hand over the digital remains upon request.

A person’s digital remains are also an information trail that is left behind.  Interactions with the State are a good example: registering births, deaths, marriages; acquiring passports; identifying oneself to the Department of Social Protection, the Revenue Commissioners or the Health Service Executive.  Many of these interactions are mediated and recorded digitally.

Research Questions

This research project poses five central questions regarding the legal and regulatory position of the digital remains of the dead.  As this is the first extensive examination of this nascent area, the clear starting point is to conceptualise what a decedent leaves behind in digital media.  Is it a form of property, personal information or some element of personality or a combination of these?  What are the principal philosophical and theoretical underpinnings to support various definitions, frameworks and taxonomies of digital remains?  Are property or personhood theories applicable?

The definitional and theoretical evaluation also requires an assessment of why digital remains are important.  What is their value to the deceased, heirs, the surviving family, next-of-kin and society?  What are the legal, personal, social, economic and cultural rationales for respecting the memory of the deceased and the rites and rituals that surround death?  Whose interests are served by these practices?  Do they protect the interests of both the living and the deceased?

It is of central concern to the research, therefore, whether personal rights and interests survive death.  Does the death of a human subject create duties and obligations in the general public, the surviving family or the next-of-kin in favour of the deceased?  Are there relevant principles established in current laws (e.g. copyright, privacy, confidentiality, freedom of information, data protection or defamation) for dealing with posthumous rights and interests?

The nature of technology and the business models that support it in everyday life also require examination.  The bulk of digital remains are in the possession of third party service providers.  What issues does the mediated aspect of people’s digital lives pose?  What impact do the ‘Terms of Service’ and ‘End User Licence Agreements’ have on claims to digital remains?  Who should own these remains after one’s death?

The final question posed by this research is whether there is a role for regulation in this area.  Should the law intervene, and if so how?  Can the interests of all stakeholders be reconciled?  Take the example of digital public records and their treatment; should beneficial secondary uses override privacy concerns of individuals or the families of the deceased?  Should our digital remains be donated to research and science?  What aspects of digital remains require regulation: ownership, access, control or moral aspects such as paternity and integrity?

Contribution of this Project

As the once static and property-based memories of the deceased are replaced by virtual and, through digital technology, possibly dynamic remains, new and exciting legal and ethical puzzles are posed for society.  This research will provide clear policy foundations for Internet-based service providers to define their obligations regarding the accounts of the deceased.  As the first extensive examination of the rationales underpinning the regulation and control of the digital/virtual-self following death, this research will also prove invaluable for policy makers, legislators and regulators generally.

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This post was first published on the Irish Research Council website.

The image is reproduced with the permission of Ryan Robinson and www.ImageThink.net (http://www.flickr.com/photos/imagethink/5526198135/)