Inaccessibility of Digital Assets

Digital estate planning is becoming an increasingly common practice.  However, security measures of internet and technology corporations have the potential to disrupt the implementation of a testator’s plans.

recent news article tells the story of a woman named Anthea Grant, who purchased an iPad for use during two years of cancer treatment.

The device was used primarily for entertainment during chemotherapy sessions and for video communication with Anthea’s sons, Josh and Patrick.

After Anthea’s death, her sons realized that they did not know their mother’s Apple account password.  Anthea’s sons are the sole beneficiaries of her Estate.  There is no controversy with respect to the sons’ right to possess the device.  However, Josh and Patrick have been unable to obtain access to the tablet to see if it contains any relevant information.

After providing their mother’s death certificate, a copy of her Last Will and Testament, and a letter from their solicitor, as had earlier been requested, Apple is now asking for Anthea’s written  instructions that Josh and Patrick are authorized to access her account.  As this is no longer an option, Apple recommends that the brothers obtain a court order to prove that Anthea was the owner of the iPad and Apple account, citing the American Electronic Communications Privacy Act as its rationale in denying access.

While Anthea’s sons do not wish to incur the legal fees necessary to obtain a court order for the release of the Apple account information, they wonder if the iPad contains any digital assets of any financial or sentimental value.

A digital estate plan frequently facilitates access to computer accounts, with a list of all accounts and login information.  Had Anthea created a digital estate plan, including such information, this issue would not likely have emerged.  Nevertheless, legislation in Canada and elsewhere remains an outdated barrier that should be amended to address the prevalence of digital assets in estate planning and administration.

Thank you for reading.

Academic Articles and Papers

Academic Articles and Papers

  • In 2013, an article titled: “Facebook after death: an evolving policy in a social network” by Damien McCallig was published.
  • In 2013, an article titled: “Coping Online with Loss: Implications for Offline Clinical Contexts” by Joanna Pawelczyk was published. Thank you Dr. Carmel Vaisman for sending me the link.
  • In May 2013, Maria Perrone’s article: “What Happens When we Die: Estate Planning of Digital Assets” was published.
  • In May 2013 an article by Jed R. Brubaker, Gillian R. Hayes, and Paul Dourish was published, titled: “Beyond the Grave: Facebook as a Site for the Expansion of Death and Mourning“.
  • paper titled “Digital Afterlife: What Happens to Your Data When You Die?” was published in May 2013, by Stephen S. Wu.
  • In May 2013 a paper titled “Digital Estate Planning: Is Google Your Next Estate Planner?” was published, by Jamie Patrick Hopkins.
  • In April 2013, the paper “Afterlife in the Cloud: Managing a Digital Estate“, also by Jamie Patrick Hopkins, was published.
  • In February 2013 a paper titled “What happens to my Facebook profile when I die?” : Legal Issues Around Transmission of Digital Assets on Death” was published by Lilian Edwards and Edina Harbinja. Thank you Paul Golding for sending me the link.
  • Since September 2012, the article “There Isn’t Wifi in Heaven!” – Negotiating Visibility on Facebook Memorial Pages by Alice Marwick and Nicole B. Ellison is available online for free download. Thank you Dr. Carmel Vaisman for sending me this link.
  • In 2012, an article titled “Grief-Stricken in a Crowd: The Language of Bereavement and Distress in Social Media” was published, by Jed R. Brubaker, Funda Kivran-Swaine, Lee Taber and Gillian R. Hayes.
  • In 2011, the article “”We will never forget you [online]”: An Empirical Investigation of Post-mortem MySpace Comments” was published, by Jed R. Brubaker and Gillian R. Hayes.
  • In 2011, the article “Security and privacy considerations in digital death” was published by Michael E. Locasto, Michael Massimi and Peter J. DePasquale.
  • In 2010, Jed R. Brubaker and Janet Vertesi’s paper “Death and the Social Network “was published .
  • In 2008, the current term “Digital Legacy” was then referred to as “Digital Heirlooms” and an article titled: “On the Design of Technology Heirlooms” was published by David Kirk and Richard Banks.
If you come across any other papers or articles, please be so kind as to send me the link, so I could add them to the list (with credit to you, of course). Email: death.in.digital.era@gmail.com, Facebook page: Digital Dust.
Digital death is still a problem. A widow’s battle to access her husband’s Apple account

Wills, Trusts & Estates Prof Blog

As I have previously discussed, even people who believe they have a comprehensive estate plan may have overlooked what happens to their digital assets when they die. The idea is to address digital assets in your existing estate plan. Attorney coach, James Lamm, is teaching attorneys how to integrate specifics of digital estate planning.

Many people possess digital assets that may be of great value to them. However, the value of web domains, photos, videos, email, and social-media accounts may be lost if the owner does not take proper legal steps ahead of time. Digital estate planning is more complicated than traditional estate planning because the owner of assets is tasked with making sure to leave access to the heir. However, these sites may be password protected, encrypted, and governed by privacy laws. Lamm suggests some first steps that would help in the digital estate -planning process.

  1. Go through a test run and ask yourself if you were incapacitated today would your loved ones be able to gain access to your digital assets? Who would you want to have access?
  2. Keep a record of all of the things in your digital inventory with the user name and passwords.
  3. Keep a back up of your digital asset information.
  4. Reduce your plan to writing.

Death, Data and the Digital Hereafter

The digital afterlife: thinking about what happens to our online life when we die. Image credit: Richard Parker/Stuff.co.nz

The digital afterlife: thinking about what happens to our online life when we die. Image credit: Richard Parker/Stuff.co.nz

A soon-to-be-released science fiction movie, Transcendence, features Johnny Depp as a scientist who becomes immortalised as a digital entity – an event that is referred to by many as the Singularity. This is still rather far from reality, of course, but it did get me thinking about death and what happens to ‘our’ data – all those Facebook chats, Instagram photos and so on. I’m talking about the digital hereafter.

Your digital persona

It was around the turn of the millennium when I first started using the internet seriously (by which I mean how much time and energy I spent on the internet, not what I used it for). Back then, I spent my time online divided between MySpace, and plenty of forums. I certainly wasn’t thinking about a data backlog, or what would happen when I die. But as more and more of my life moved online, this has come to my attention as something not too many people think about. I don’t actually know, but I would guess that I have a profile at well over 200 websites, including social media sites, forums, retail and financial services, and any number of arbitrary web-apps that required me to sign up to use them just once.

My point is, as the internet has grown we have strewn our personal data far and wide across numerous websites, with little further thought for that data, sequestered in servers across the world. And in so doing, we have created a kind of avatar – a nebulous collection of data points in the cloud, that together makes up an online persona.

Your data after you die

Google, Facebook, and Twitter all have strategies to deal with accounts of the deceased – Facebook will ‘memorialise’ a profile if a family member can confirm the death of that person. This turns the profile of the deceased into a public memorial page, which won’t show status updates but still allows loved ones to post messages. Twitter just locks your information down, while Google has what they call the Inactive Account Manager – after a defined period of inactivity, Google will  transfer your data to a trusted contact and/or shut down your account. In general, it seems that the data will be made available to loved ones (or the courts) if absolutely necessary. Several companies have positioned themselves as managers of you digital legacy – covered in this blogpost. For a more in-depth discussion of digital estate planning, see this NY Times article published last year.

Now for some more outlandish options for the digital afterlife. Several companies have caught on to this opportunity, and are offering to immortalise your digital persona for posterity. Eterni.me promises to create a digital version of the deceased, which will continue to post status updates and send messages. The company will parse your data to create an virtual ‘you’ based on your likes, browsing history and previous social media messages. LivesOn is another such project, which promises to keep tweeting for you after you die. With taglines like ‘When your heart stops beating, you’ll keep tweeting. Welcome to your social afterlife.’ (LivesOn) or the frankly misleading ‘Simply Become Immortal’ (Eterni.me), these services are not for everybody. Personally, I find the idea of a dead loved one tweeting something inane rather distasteful, and I would be downright upset if a digital ghost started messaging me about the good times we had back when they were alive.

Corporates aren’t the only ones thinking quite seriously about this stuff – there is a website, The Digital Beyond, which has been started to discuss and document these issues. The owners of the site have also written a bookdiscussing one’s options for curating the digital remains of a loved one. Academia is getting in on the act, too:researchers in the UK are studying how Western public mourning practices are changing. They document massive growth in online mourning rituals, such as the aforementioned memorial pages on Facebook, blogs dedicated to the memory of loved ones, and so on.

Another way of dealing with digital remains

I would like to consider another aspect of this discussion, one which I have not seen discussed much: the value of that data as a public resource. Data has become the unofficial second currency of business in the 21st century – just look at mobile developers. They run at a loss for years, until someone will buy their captive audience from them as data for the great online advertising machine. As it stands, the digital remnants of a life belong to the company that owned that data to begin with. But I have a alternative suggestion, which would be massively useful if implemented correctly. What if, after a reasonable mourning period (call it five years to be safe), all of that data was parsed, anonymised, and made publicly available, for free? Think of the wealth of data that would represent, over the next few decades, or even centuries. Big Data is an overhyped topic right now, but we are already seeing it’s mark across the world. Think of the complex modelling and forecasting that would be possible. Think of the boost to academia, industry, commerce, financial services and even sport. And applied to humanitarian work in health or the environment, it would quite literally change the world.

The importance of digital asset planning explained

Digital estate planning

“Privacy is not something that I’m merely entitled to, it’s an absolute prerequisite.” — Marlon Brando

Bricks and mortar businesses are inexorably coming to the realisation that a substantial amount of their business value is intangibly trapped in information. For online businesses, practically 100% of their assets are made up of information and the most valuable of all happens to be related to individuals. Information such as visitor, member, and client contact details are eagerly captured by online companies. The deeper and more detailed it gets, the better it is for the online enterprise. The ability to create an accurate client profile is true power and online businesses know it. They fight tooth and nail to attract new members, sign up subscribers and remain in front of as many contacts as possible. Individuals’ contact information and whatever other identity-related data they can cram into their customer databases is precious and allows them to put a value on their company, even if that value is largely theoretical.

If companies go through all this trouble to get data, would it not follow that their executives would rather part with their coveted reserved parking spots before they  consider allowing a single, hard-earned entry to be removed from their customer relationship management database? Absolutely! As long as the online businesses we deal with are subject to a privacy law based on the OECD data protection principles, we can count on the fact that limited retention is legislated and should expect our data to be purged from their systems after a ‘reasonable period of time’. What we should concern ourselves with is keeping track of all the data that is out there in detailed online and offline profiles. Social networking sites, email systems, other data sharing systems, e-commerce marketplaces and online auctions all try to build detailed profiles to allow for customisation of marketing messages, the likes of which deliver real value to online advertisers.

With the near complete penetration of the Internet across all age groups, we are increasingly likely to hear the term ‘digital estate planning’ (DEP) from tech-savvy lawyers. A search for this term yields a mere 70 hits on Google at the time of this writing, but give it a try in a year or two, and it be entrenched in the legal vernacular.

With our information now spread across dozens, perhaps hundreds of Internet sites and corresponding numbers of back-end databases, DEP is easier said than done. Social networking sites such as Facebook likely consider their early policy of ‘no deletion, only deactivation’ to have been a key driver of explosive growth as their user base shot past 100 million. Other sites that may have been more ethically inclined did not have the same opportunity to rekindle relationships with returning users. With global pressure to adopt data protection best practices, more and more firms are finding that they need to offer options for purging individual information from their systems.

The potentially vast amounts of information about deceased, Internet-active individuals may well turn into an insurmountable task for many, or an expensive task for a legal professional who wants to delve into DEP provisioning. Sites such as Hotmail, Yahoo! and Google all allow next-of-kin access to the deceased party’s information upon presentation of proof of death and proof of relationship, but a process needs to exist to manage all such related activities. Such a process can be based on a solid foundation of privacy legislation but, from the subject’s perspective, it must be consistent with existing best practices for password management and profile maintenance.

It is important to remember that information represents the building blocks of our identity and beyond the proper disposal of our data-based estate resides the very real threat of identity theft. That threat is real and has been for years. Husnain Kazmi is Vice President for Bank of America in Southern California. Kazmi says that in 2004 alone, some 400,000 checking accounts were reportedly opened in the US and millions of dollars in car loans were approved in the names of deceased individuals. This particularly effective type of identity theft is called ‘ghosting’ and most often occurs as a result of orphaned data being harvested by IT-savvy criminals looking to profit.

Governments need to step in and proactively install legislation that will protect citizens. Provinces in Canada, for example, are taking steps to establish privacy legislation around medical records. Many in the health care system view the legislation as crucial to the successful implementation of the Pan-Canadian Electronic Health Record (EHR) system under development across the country.

Following best practices is vital, but not enough. While the discussion is rather morbid, we must encourage clients and loved ones to exercise common sense when writing obituaries and safeguarding death certificates. Donald Kerr, Deputy Director of National Intelligence in America, is quoted as stating the following on the Office of the Director of Naval Intelligence website, “Too often, privacy has been equated with anonymity; and it is an idea that is deeply rooted in American culture… but in our interconnected and wireless world, anonymity – or the appearance of anonymity – is quickly becoming a thing of the past… we need to move beyond the construct that equates anonymity with privacy and focus more on how we can protect essential privacy in this interconnected environment. Protecting anonymity isn’t a fight that can be won. Anyone that’s typed in their name on Google understands that.”

We may all soon be in need of an internet-savvy, privacy aware, digital estate planner.