While there have been some legislative and judicial developments in some jurisdictions (see Nebraska’s Bill 783 for an example), it has largely been left to private industry to resolve the problems created when a person passes away leaving a large digital footprint behind.
Fortunately, Google has stepped up to the plate and introduced a new policy to resolve this issue with respect to its services. Google’s new Inactive Account Manager feature takes leaps forward towards resolving digital legacy issues.
Called a “digital will” by some media sources including the Toronto Star, the Inactive Account Manager allows users to manage what happens to their Google-related digital assets on death, or on prolonged account inactivity. Users may set a period of time of inactivity (three, six, nine, or twelve months), after which Google will delete their data. Before anything is deleted, Google will notify you by email or by text message to your cell phone. If users would prefer that their data be preserved, there is an option to have some or all of it sent to trusted contacts. The services to which the service applies include +1s, Blogger, Contacts and Circles, Drive, Gmail, Google+ Profiles, Pages and Streams, Picasa Web Albums, Google Voice, and Youtube.
This service is a clever and easy to use way to manage digital assets. It does raise a number of questions, however. How does this policy interact with legislation and case law about digital assets in jurisdictions that have these policies? Will Facebook, or other online services follow suit and prepare similar policies? Does an estate trustee under a will in Ontario have the authority (or the responsibility) to collect your digital assets from the person named on your Inactive Account Manager?
Perhaps the answers to these questions will become clear with time. In the interim, it appears that we are left with a patchwork of policies created by different online service providers with different intentions and different philosophies. Consider, for example, _LIVESON, a service that analyzes a user’s Twitter habits and generates automated tweets for him or her after death. Control is placed in the hands of an “executor” who manages your _LIVESON “will”. Although somewhat eerie, this is an interesting way to ensure that a person’s online presence not only persists after death, but continues to develop and grow.
If you are a Google user, it may be worth checking out the Inactive Account Manager and configuring your settings. The photos, blogs, friends and videos left behind on a user’s death may mean a lot to grieving loved ones.
When updating an estate plan, digital assets are an important aspect to consider. Lawyers should be cognizant of the issues surrounding digital legacies, and should discuss them with their clients. People planning their wills should think about the intangibles they leave behind as well. And if you aren’t sure where to find this information, try Google.
The May 2013 issue of the Internet Law Researcher newsletter (which is available to members of the Duke Law community through Westlaw‘s GLILR database) rounds up a bibliography of legislation and articles related to digital asset estate planning. To locate the article in Westlaw Classic or WestlawNext, use the citation 18 No. 5 Internet L. Researcher 1.
Planning for death has always been an uncomfortable and difficult topic for most people, and the growth of social media and other online accounts has added a new layer of complexity to sorting out the affairs of the recently deceased. Author Ken Kozlowski describes the current situation as “a big mess” in which “the federal Stored Communications Act (SCA) [is] being cited as a reason for services such as Facebook to withhold access to deceased individuals’ accounts, passwords, stored photos, etc.” Five states have passed legislation related to control of deceased individuals’ online accounts, and undoubtedly more state legislatures will follow suit.
The Internet Law Researcher article recommends a number of publications from legal and mainstream sources, including the recent law review student note by Maria Perrone, What Happens When We Die: Estate Planning of Digital Assets, and the blog Digital Passing. The recommended resources offer tips for developing a plan to handle digital assets after death, and serve as a good supplement to the Goodson Law Library’s collection of estate planning guides, most of which do not discuss digital assets in detail.
Meet Courtney.* She represents the average family caregiver: 34 years old, a full-time nurse, mother to a pre-teen daughter, with a half-brother who lives several states away and a younger brother in the military. Like many Americans, she lives on-line, utilizing at least 25 password-protected sites on different computers and a smart phone, where she stores and shares the vulnerable, mundane, and whimsical in her life while connecting to family and friends. Before her mother’s illness, she had thought little of her own digital assets, let alone those of anyone else. When she joined the one-third of the US population who provides care for an ill, disabled, or aged person — two thirds of whom are women, shepherding her terminally ill mother’s online presence in life and after her death became very important. We use Courtney’s story to give us a glimpse into the questions, tasks, unexpected dilemmas, and benefits that await us in caring and grieving in the digital age.
The news that her 58-year-old mother faced terminal cancer shocked Courtney and propelled her into caregiving action. Drawing on her nursing background and love of organization, Courtney created spreadsheets to track her mother’s medications and the signs and symptoms of her disease. She and her mother searched disease progression and treatment options on-line, making lists of questions for her doctors and finding support groups. Courtney also began a private blog, tracing her mother’s stays in the hospital, and she treasures pictures stored on her phone of her mother’s last Halloween, hospitalized but still trick-or-treating at the nurses’ station.
As her mother’s condition declined, Courtney realized that her own comfort level with sharing her personal story through digital media and her mother’s were different, and her mother’s wishes took precedent over her own. For example, she considered using a caregiving site likeCaringBridge to help her mobilize support, but her mother’s wishes for a high level of privacy during her illness meant private e-mail messages and texting were best. Before her mother’s illness, Courtney shared her life’s ups and downs regularly on Facebook and Twitter, but now she tried to follow general digital etiquette advice as best she could, speaking only from her perspective as a daughter, refraining from telling her mother’s story without her permission. Most of the time, though, she found herself too exhausted to share anything and used Facebook to unwind, living vicariously through the pictures, status updates, and tweets of her friends.
Courtney soon realized that she did not know what digital accounts her mother had, let alone what she would want done with them in the future. On one of her mother’s stronger days, they sat down to begin sorting through her digital life together. Clicking through her mother’s Shutterfly, Pinterest, ITunes and Facebook accounts became an opportunity for reminiscing. Because most digital accounts are non-transferrable, they decided what material needed to be saved to her computer’s hard drive, which accounts to close, and which accounts to leave active, like her Facebook page which she still enjoyed using to keep up on her distant grandkids and childhood friends.
Because of her mother’s wishes for privacy, Courtney was surprised when her phone began buzzing non-stop soon after her mother died:
It was weird, because I’d only told a few people that she was dying. I learned that a family friend had been posting detailed updates about my mother’s last moments, and never checked with us about whether we wanted privacy and time. I was very hurt by that. I just felt like the world needed to stop.
Upset that her brothers might learn of their mom’s death on Facebook and not from their sister, she called them immediately. For several days, Courtney tried logging in to her social media accounts, but seeing her mother referred to in the past tense overwhelmed her. She wanted to scream to her well-meaning friends, “I am not ready for my mother to be a “was” yet!” Courtney turned off her phone and asked her best friend to become her family’s informal digital proxy by posting updates from the family on Courtney’s Facebook page, including logistical information about the funeral service and burial. In turn, her friend shared with Courtney the many appreciative comments about her mother’s life from social media sites and from the on-line guest book for her mother’s obituary.
Inevitably, time passed, and Courtney began the long journey of grief, incorporating the death of her mother into her own life story, gaining narrative resilience word by word, click by click. Through Facebook, she gained access to memories and stories from the geographically dispersed group of her mom’s friends, even learning from them how much her mom appreciated the sacrifices she had made to care for her. She still views her mom’s Pinterest board, savoring those unique ideas and dreams. Courtney and her brothers have committed to weekly Skype dates, where they check in and stay connected as they each grieve their mom in their own ways. They have already taken the step of memorializing their mother’s Facebook page, mostly to have closure and to ensure her privacy will be protected.
Courtney’s story reminds us that even if we personally plan for the management and bequeathal of our digital assets and story, a trusted loved one will be the one to carry out our wishes. Some families could benefit from legal counsel, but much can be done informally, as we saw with Courtney’s family. The critical first step is recognizing how digital assets can both provide support and — paradoxically — overwhelm without careful management. The next step is deciding how best to use those assets.
Like Courtney, daughters will most likely be the ones to initiate the conversation, but not all of us will have the luxury of time and ability to talk about what we wish. The time to plan for our digital legacy, both assets and story, is now. Far surpassing any monetary value, our digital narrative assets hold tremendous sentimental value for those who will find comfort and meaning from our cloud of digital witnesses.
*Courtney’s name has been changed to protect her privacy. She represents one of the Gen X interview cohort interviewed by Amy Ziettlow and Elizabeth Marquardt for a forthcoming book on 21st century caregiving and grief.
New Hampshire recently gave some thoughts about what happens to your facebook page when you die. More precisely, legislation is being changed so that an estate executor would be in a position to get a hold on the different social networks, emails, … after the death of the owner – which is something that is not the custom today.
Peter Sullivan is the State Rep. who started the movement of digital estate planning in the New Hampshire House of Representatives, which accepted this bill 222 to 128. The goal of these legislation is namely to give a better control of the situation to the persons who just suffered from a loss.
The other states so far are Rhode Island, Connecticut, Oklahoma, Idaho, and Indiana. The first and the second were the first states to introduce a control of digital legacy, but at the same time only applied on a limited number of services. Oklahoma was supported by a state legislator, Ryan Kiesel. Kiesel helped draft the texts, but according to his own advice, the issue must be addressed to by the federal government.
Let’s have a quick look at the different states and statuses. Here are attached links to the different texts concerning the current laws (as of beginning of 2013).
Rhode Island: The legislation simply allows an executor to access the accounts of emails of the departed.
Idaho: The Idaho text allows the executor to take over and control the account of the decedent, including the Facebook, Twitter, as well as any email provider. The major difference resides in the fact that the executor can resume the use of the account, even on a posthumous base.
In Texas, many people have become aware that they should create an estate plan that deals with the distribution of their assets when they die. In fact, the same people know that common tools in estate planning include a will or trust. However, what they may not know is that the on-line estate of a person is as important as that of the physical estate when working to create a comprehensive plan.
A digital estate includes both traditional assets like money and more emotionally related, sentimental items, like photo storage sites. These can all be dealt with in estate planning documents. For example, Google has a method in which an account owner can set who and how their accounts can be accessed when they die. Other websites have similar options available.
Important for those left behind is the information as to what on-line accounts exist. This can be included in estate planning documents. The details about the accounts should be updated regularly as people add accounts and information to the web. In addition, passwords should be kept separately, and out of the estate planning materials that can become public at the time of death and probate.
Estate planning may seem overwhelming to some in Texas. This is because of the difficulty in ensuring that all assets have been accounted for and that the plan that they create is complete. To be sure that this is the case, it may be helpful for an individual to review all available options and seek advice from those with experience in estate planning.