Digital Remains

Posts on Digital Remains

A ‘look-back’ at Facebook’s evolving deceased user policy

Facebook’s evolving deceased user policy

On 21 February 2014 Facebook announced two high-profile changes to their deceased user policy.  Changes to the deceased user policy are nothing new.  Since the inception of Facebook questions in relation to the handling of the accounts of the dead – including enquiries and access requests from surviving relatives – have seen the deceased user policy slowly evolve to where it is today.  For more detail on the evolution of Facebook’s policy see a recent article of mine – here.

Greater visibility of deceased user accounts

The two significant amendments announced relate to changes once a decedent’s account is memorialized.  Prior to 21 February 2014 when an account was memorialized, visibility of the account and content was to friends-only.  Unless you were a Facebook friend of the deceased person the account or any of its content could not be viewed.  The change announced by Facebook means that visibility of a deceased person’s content remains as it was set by the account holder while alive.  According to Facebook this “will allow people to see memorialized profiles in a manner consistent with the deceased person’s expectations of privacy.” It is unclear but it seems that this change applies to all memorialized accounts and not just those account holders who pass-away from 21 February 2014 onwards.  Therefore, the statement does appear to discount the prior expectations an account holder had with respect to their posthumous privacy – most notably the visibility of their account and content – under the older deceased user policy.

Deceased person’s expectation of privacy

The issue of user expectations and the memorialization process was specifically addressed by the Office of the Privacy Commissioner of Canada in 2009 in her report on Facebook: (see paragraphs 279-280).

In my view, most typical Facebook users would welcome the prospect of being posthumously remembered and honoured by their friends on the site.  Likewise, I am sure that users generally would regard the freedom to pay their respects to deceased friends and fellow users as an important part of the Facebook experience.  I am also mindful that in memorializing an account Facebook takes care to remove information such as status updates and to restrict profile access to confirmed friends.

I am satisfied therefore that the practice of account memorialization meets the reasonable expectations of users and that Facebook may thus rely upon their continuing implied consent to the practice.

The Canadian Commissioner was satisfied that due to her conclusion on the reasonable expectations of users regarding the process of memorialization, that Facebook could rely on what she termed “continuing implied consent to the practice”.  However, this was predicated on Facebook providing a meaningful description of the memorialization process in its Privacy Policy.  A matter that Facebook eventually agreed to in August 2009 as part of the resolution reached with the Canadian Commissioner.  Therefore amending the visibility on decedent’s accounts whose death pre-dated this changed policy (21 February 2014) may not actually reflect those account holders expectation of post-mortem privacy as described in Facebook’s policy prior to their death.

Of course, there is no universally accepted norm to deal with access to and the disposition of social media accounts and their contents after death.  Even with real property differing legal, cultural, social and religious values and principles play a significant part in how different jurisdictions choose to deal with succession and probate matters.  Such complexity across the jurisdictions within which Facebook offer services and a lack of established norms obviously creates difficulties; should Facebook follow a common law, civil law or a religious based legal tradition in providing a solution?  In their evolving response, Facebook are now arguing that they merely permit the individual user to decide: if you shared with someone while alive, by default, you now continue to share with them in death.  The Facebook statement confirms:

We are respecting the choices a person made in life while giving their extended community of family and friends ongoing visibility to the same content they could always see.

Based on the Canadian Commissioners 2009 assessment criteria this position at least seems defensible for those whose death occurs following the introduction of the amended deceased user policy.

Look-back video

A further significant change in policy was also flagged.  A confirmed Facebook friend of a deceased user can now request a ‘look-back’ video from a deceased user’s account.  Look-back videos were introduced to mark Facebook’s ten-year anniversary, on 4 February 2014.  Each account holder received a short one-minute video, a retrospective on their lives based on posts and photos shared on the network.  For Facebook the ‘look-back’ videos have proved a huge success, with 720 million accounts containing sufficient content to generate a video and more than 200 million account holders viewing their videos within the first two days of them becoming available, with more than 50% of those sharing their video.

Almost inevitably relatives began to seek access to these short videos that highlighted memorable posts and photographs of their deceased relatives time on Facebook.  One such grieving father, John Berlin, from Missouri, sought access from Facebook to his son Jesse Berlin’s look-back video.  Jesse had died in 2012.  Direct contact with Facebook proved unsuccessful so John eventually posted a plea on YouTube.  Within 24 hours the video was viewed one million times and is now approaching three million views.  According to Facebook because of this viral YouTube plea they relented and created a look-back video for Jesse Berlin and shared it with his father.  In their press release Facebook claimed that due to this issue ‘touching their hearts’ and they have now amended their deceased user policy to permit friends of a decedent to request decedent’s look-back videos.

Why change the policy?

So, why did Facebook relent?  Is there any benefit – other than good public relations – from this change in policy? Most commentators have welcomed these changes as a sign of Facebook being ‘respectful of and responsive to’ issues raised by surviving families.  Others have tentatively questioned whether these changes are ‘simply a welcome example of a compassionate social media service provider’.

Taking a more cynical view it is arguable that given the success of the look-back videos that the lure of access to the video of a deceased relative or friend could be seen as a clever way for Facebook to boost the timely reporting of deceased account holders to them.  Facebook do not trawl the Internet for reports of death – they rely on others to report deceased users to them.  Although difficult to quantify a practice had emerged of relatives and friends gaining control of  passwords and subsequently the decedent’s Facebook account.  Unless the death was reported to Facebook a family could, in theory, continue to access and control the account indefinitely.  Memorialization however prevents even those with a valid password from logging-in and controlling an account.  A key condition to access a decedent’s look-back video is that the user’s account ‘must be memorialized‘.

The lure is working and reports are now slowly emerging of bereaved parents and siblings being locked out of deceased relatives accounts which they previously controlled.  According to reports the lock-out arises following the memorialization of the deceased person’s account triggered by a look-back video request.  It is clearly in Facebook’s interest to identify deceased account holders as quickly a possible.  After all, accurate identification of deceased users helps to better target advertising.  This is especially so as Facebook are transitioning their service away from free – reducing organic reach of pages – towards a paid marketing platform focus.  Driving a paid marketing platform requires the targeting of living account holders in order to keep ‘click through’ rates at viable and competitive levels when compared to other marketing platforms.

Where next for Facebook’s deceased user policy?

Of course, this analysis may be far too cynical.  Facebook in their announcement indicated that they continue to review and evolve their deceased user policy.

Changes like this are part of a larger, ongoing effort to help people when they face difficult challenges like bereavement on Facebook.  We will have more to share in the coming months as we continue to think through how best to help people decide how they want to be remembered and what they want to leave behind for loved ones.

It is unclear what changes Facebook intend to implement.  Nevertheless two strands emerge from the announcement.  Firstly, Facebook claim they want to ‘help people decide how they want to be remembered‘.  This could indicate a more granular set of options being made available for account holders in relation to what content remains visible on the platform following death.  Secondly, Facebook claim they want to help people decide on ‘what they want to leave behind for loved ones‘.  This raises the possibility that account holders may at some time in the future be permitted to nominate ‘loved ones’ for specific bequests.  Unfortunately, Facebook are generally ‘disinclined’ to permit content and data to be exported and deleted from the network, so we must wait and see how much testamentary freedom account holders may acquire in the future.   Nevertheless greater granular control over visibility and bequests would be a welcome step forward.

 

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Image reproduced with permission of Law Society Gazette -Image by Thinkstock/Gazette Studio/Redmond Design.

Image originally published – Law Society Gazette Jan/Feb 2013

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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/)