New Delhi, Aug 31 (IANS) As most of us spend a considerable amount of time on various digital platforms — Facebook, Twitter, Google+, Instagram, WhatsApp and the like — a pertinent question now arises: What happens to our digital possessions once we die? All those unforgettable personal photos, family […]
As most of us spend a considerable amount of time on various digital platforms – Facebook, Twitter, Google+, Instagram, WhatsApp and the like – a pertinent question now arises: What happens to our digital possessions once we die?
All those unforgettable personal photos, family videos and friendly posts acquired over a period of time will either be deleted or kept “frozen” unless we have a digital heir who can preserve those precious moments and gift those to future generations in an external hard disk or pen drive.
While several social media platforms, including search engine Google, allow us to safeguard digital memories in some form or the other, there is no such thing as transferring such assets to someone when it comes to cyber law, including in India.
According to legal experts, when someone dies leaving behind his email and social media accounts, these become movable property and any heir of the deceased can seek the right to access them.
The said heirs can ask the digital/social media companies to get access after giving the necessary proof. Invariably, the service provider may not be inclined to give such access without any requisite order from the court of competent jurisdiction. This could mean getting a succession certificate from a court of competent jurisdiction which could be a time-consuming process.
According to Duggal, also a Supreme Court advocate, Indian cyber law has not even touched upon – let alone dwelt on the nuances of – the issue of one’s post-death digital life.
“Complicating the entire matter is that the Indian cyber law is not applicable to wills or testaments. This has created huge confusion. The ground reality is that people have stopped waiting for the law to change. Instead, they have come up with their own digital wills which provide various methodologies for devolving their digital assets and information to their heirs after their death,” Duggal told IANS.
Digital data comes within the ambit of movable property and hence the appropriate succession certificate needs to be applied for in the Indian context.
“It is pertinent to note that India does not have a dedicated law on digital inheritance which is, indeed, unfortunate, given the rapid adoption of and reliance on digital data by young Indians,” lamented Duggal.
The social media giants, however, have formulated their own solutions to the problem.
Facebook will “memorialise” your account and allow you to choose a “legacy contact”. No one can log into a “memorialised” account.
The “legacy contact” can “manage” your account by adding a pinned post (like a funeral announcement), respond to new friend requests and change the profile picture and cover photo – but nothing beyond that.
Google, which owns Gmail, YouTube and Picasa web albums, has an “Inactive Account Manager” feature which allows a user to nominate who has access to his or her information. If people don’t log in after a while, their accounts can be deleted or shared with a designated person.
According to Twitter:
In the event of the death of a Twitter user, we can work with a person authorised to act on behalf of the estate or with a verified immediate family member of the deceased to have an account deactivated.
The micro-blogging site, however, added: “We are unable to provide account access to anyone regardless of his or her relationship to the deceased.”
From the security point of view, one has to safeguard digital impressions in case of death so that they are not used for anti-social purposes.
Digital signatures/impressions generally have a validity/expiry date which require a yearly renewal and they are also equipped with a unique combination of passkey so even if someone has the digital signatures they must know the access key to use that.
According to statistician Hachem Sadikki from the University of Massachusetts, Facebook will become the world’s biggest virtual graveyard by the end of this century as there will be more profiles of dead people than of living users.
Facebook, which currently has 1.71 billion users worldwide, will turn into the world’s biggest virtual graveyard by 2098.
In such a scenario, preparing a digital will where you appoint a legal heir to take over your digital life is the need of the hour.
The law, however, is silent on this not just in India, but abroad too. Several US states have been debating the question of whether families can access someone else’s digital assets after they die.
The law has to instrinsically recognise that digital data and information, as also aspects pertaining to digital life, are integral components of our life and the law must provide for seamless inheritance of digital data.
This becomes all the more significant as we have become huge data generators, data publishers and data broadcasters in our lifetimes.
“All eyes are on the governments, including in India; they must come up with requisite legal frameworks to provide for seamless and efficient digital inheritance for the people,” Duggal asserted.
In their experiment, the fictitious company had a 4,316-word Terms of Service Agreement for the user to read when signing up for the company’s social networking site. By comparison, Google’s Terms of Service Agreement (revised April 14, 2014) runs 1,881 words, Facebook’s Terms of Service Agreement (revised January 30, 2015) runs 3,159 words, and Yahoo!’s Terms of Service Agreement (revised March 16, 2012) runs 5,585 words. The working paper notes that an average adult should be able to read the 4,316-word Terms of Service Agreement used in the experiment in 15-17 minutes. However, in the experiment, 86% of users spent less than one minute reading the Terms of Service Agreement, and 97% of users spent less than five minutes reading the Terms of Service Agreement. Only 9 of the 527 participants in the experiment (1.7%) reported noticing the “gotcha clause” requiring the user to assign their first-born child to the company.
From an estate planning perspective, some Terms of Service Agreement provisions are important to consider, especially when planning for a user’s incapacity or death. Here are several provisions to consider in reviewing Terms of Service Agreements:
- May the user share the user’s password or let others access the user’s account? For estate planning, this is important to determine whether a fiduciary or family member can access the user’s account during the user’s incapacity or after the user’s death. If someone other than the user accesses the user’s account and “exceeds authorized access”—which could include violating the access rules of a company’s Terms of Service Agreement—that person could be charged with a crime under applicable state law, under the federal Computer Fraud and Abuse Act (18 U.S.C. § 1030(a)(2)), or under the federal Stored Communications Act (18 U.S.C. § 2701(a)) For example, Section 4.8 of Facebook’s Terms of Service Agreement (revised January 30, 2015) says “You will not share your password…let anyone else access your account, or do anything else that might jeopardize the security of your account.”
- May the user transfer the user’s account? For estate planning, this is important to determine whether the user’s account may be transferred to another individual, to the trustee of a revocable living trust, to the trustee of an irrevocable trust, to a Limited Liability Company (LLC), to a partnership, or to a corporation either during the user’s lifetime or after the user’s death. If the user breaches the account transfer restrictions in the company’s Terms of Service Agreement, it could be grounds for the company to terminate the user’s account.
- Does the user’s account terminate on the user’s death? For estate planning, this is important to know what planning needs to be done during the user’s lifetime to preserve and protect the user’s account contents and what planning options are available after the user’s death. For example, Section 28 of Yahoo!’s Terms of Service Agreement (revised March 16, 2012) says “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.”
- What rights to the user’s data are being assigned to the company? For estate planning, this is important to know what intellectual property rights are involved. For example, is the user granting the company a license to use original works of authorship of the user that may be protected by copyright law? If so, does that license continue after the user’s death or after the user’s account is deleted?
A young man is staring straight into the camera. He looks late 20s or early 30s, with a suede blazer and two-toned hipster glasses, and cheerfully waves as he introduces himself. “Hi, my name’s Will,” he tells the YouTube audience. “And I’m dead.”
“While my family is a bit upset, they’re not stressed. Because when I was among the land of the living, I made the incredibly smart move of signing up for Everest.”
Will flashes a smile. His family plans his funeral in the background, using the detailed plan he left behind.
Everest is a Houston-based funeral concierge, and the firm that commissioned Will’s upbeat, millennial-friendly video last fall from Sandwich Video, a Los Angeles production company popular with the tech set in Silicon Valley. Everest published the film in February 2016 as part of a campaign to target millennials, hoping even twentysomethings can be lured into thinking about their digital afterlives.
Everest is just one of a wave of apps and digital services that are emerging to help millennials plan their own #authentic mortal passings, right down to Instagram-worthy funerals. Last fall, rival apps Cake and SafeBeyond were released within one month of each other, and both hope to streamline end-of-life planning into one simple app.
Death apps promise to help a person organize his or her entire online life into a bundle of digital living wills, funeral plans, multimedia memorial portfolios and digital estate arrangements. It could be the mother of all personal media accounts, designed to store all of a person’s online passwords in one spot, for a successor to retrieve after he or she dies.
But millennials already curate their digital lives to perfection on social media. So how much are these “death apps” adding just another layer of pressure to personalize yet another stage of their lives?
According to a 2011 McAfee survey, the average American valued their digital assets at around $55,000. In 2015, the average internet user has at least 90 online accounts. A tech pundit once estimated that 2.89 million Facebook users would die around the world in 2012 and leave their pages behind. In the US, 89% of adults age 18-29 who use the internet also use a social networking service.
Google, Pinterest, Twitter and Facebook already offer options to let users pass control of their accounts to their loved ones if they die – with limitations. Facebook legacy contacts, for example, cannot edit a memorialized account’s old posts or delete the account entirely.
In contrast, death apps help people give their loved ones unconditional control of all of their online accounts by digitally transmitting their account passwords to them, post-mortem. Online banking, digital newspaper subscription and online shopping accounts are all scooped up by death apps, not just social media accounts.
Millennials aren’t exactly dying more frequently these days. In 2013, the most recent year for which official data is available, Millennials’ death rates stayed constant in the US, even dropping slightly in the youngest group. Logically, it’s the post-second world war baby boomers driving the business of death apps – and coincidentally, the death rates of people between 55 and 64 also jumped in 2013.
But end-of-life planning services see millennials as their newest drivers as they begin to have families and think about how to manage their legacies. And some are making death a part of their lifestyles. “Death salons” and “death cafés” have grown cult followings, and there are selfie tumblrs of people at funerals.
Everest claims that more than 25 million people across the US and Canada have access to the service as part of their employee benefits packages. In 2013, under pressure from its customers, Everest rolled out a cloud service, similar to Cake and SafeBeyond, that lets clients store any type of digital data on its servers.
“They’re getting used to these kinds of services in other parts of their lives. It’s just one more of those,” says Mark Duffey, Everest’s CEO. “Instead of making it harder, in many cases, it makes it simpler.”
The co-founder of another end-of-life planning company, Everplans, formed the basis for Everplans by drawing on her own experience planning her wedding with The Knot’s online wedding planning tool. Sites like The Knot and The Bump provide online checklists and weekly email reminders for wedding and family planning, spanning several months or even years ahead of an event. But planning for death? With these death apps, it could turn into a lifelong Facebook update.
“We don’t expect somebody to go through and finish an Everplan in an hour or a day. We see it as an ongoing process,” says Gene Newman, Everplans’ editorial director.
Newman says he updates his own Everplans account every week, sometimes when he hears user feedback on new data scenarios the company should include or exclude if a service shuts down. After Everplans adds and deletes fields in its service plan, Newman usually makes changes to his own account in the same places.
Some services, like Afternote, offer people templates to create multimedia tributes about themselves while they’re still living and save them to their accounts. In case you only wanted people to remember you in a photomontage, this would be the route to go.
Since millennials already love visually documenting their lives, they could make photography in the end-of-life industry take off. Melanie Parker is an independent photographer that has specialized in funeral photography for five years. Although none of the funerals she has photographed have been for millennials, she says that the average age of the clients who ask her to photograph funerals is 24 years old.
And while no one has reserved Parker’s photography services as part of a pre-meditated funeral plan, she affirms that the profile of the person seeking funeral photography services typically is a millennial.
“The people that I talk to look at the pictures again and again,” Parker says. “This is another stage in their lives, too, like any other.”
New California law would determine what happens to your Facebook and email when you die
When it comes to dealing with the digital detritus of the dead, there isn’t exactly a standard operating procedure. How to treat the online footprints of the deceased is something companies like Facebook, Twitter and Google are only just beginning to consider. But California legislators want to pass a law regulating what companies may do with our digital records after we expire and go to the big Cloud in the sky.
Other states have at times kicked around the idea of legislating our digital life after death, but California is the first state close to passing a law. On Tuesday, the state Senate Judiciary Committee approved a piece of legislation called the Revised Uniform Fiduciary Access to Digital Assets Act, which would set guidelines for when and how companies may share our emails, instant messages and other digital records after we pass.
Two previous versions of digital assets legislation failed to get the committee’s approval. This new version, though, garnered bipartisan support from the legislative committee most likely to knock it down, giving it a good chance of passing. And if it passes, California could very well set a national precedent.
The new legislation sets up a system to determine who has access to our digital relics, and when. It prioritizes directions the deceased gave to the sites for handling their digital remains. (Google lets you plan for death with its “inactive account manager,” while Facebook lets you decide whether your account should be deleted or memorialized after death.) Then it looks at what someone said in their will. But if someone dies without a will or any discussion of their digital desires in their will, it reverts the decision-making to a site’s terms of service.
From the bill:
The bill would authorize a person to use an online tool to give directions to the custodian of his or her digital assets regarding the disclosure of those assets. The bill would specify that, if a person has not used an online tool to give that direction, he or she may give direction regarding the disclosure of digital assets in a will, trust, power of attorney, or other record. The bill would require a custodian of the digital assets to comply with a fiduciary’s request for disclosure of digital assets or to terminate an account, except under certain circumstances, including when the decedent has prohibited this disclosure using the online tool. The bill would make custodians immune from liability for an act or omission done in good faith in compliance with these provisions.
Many a frustrated parent has asked for a deceased child’s messages and been turned away—which is part of what inspired this bill. Most tech companies refuse to hand over control of a user’s account or any of their private messages unless the user explicitly said they wanted that done before their death. So those parents will likely remain frustrated.
But privacy advocates like the ACLU are still opposed to the retooled bill.
“Is it possible that they might make mistakes both by releasing too much information or releasing it to the wrong person?” said Kevin Baker, legislative director for the ACLU of Northern California, told The Recorder. “We think the history of the treatment of digital records shows that there likely will be mistakes.”
That’s despite the fact that previous versions of the bill were criticized for valuing the privacy of the deceased over a family’s wishes.
Evan Carroll, co-author of the book “Your Digital Afterlife,” told the San Jose Mercury News last year that we should expect our right to online privacy to expire after we die. Restricting access to a person’s online accounts after they die without prior consent, he said, “goes against the way estate law has worked for a long time.”
Carroll’s point is that when we die, our relatives are tasked with going through our material possessions—no matter how embarrassing—deciding what to purge and what to keep as mementos of our lives. So why, he wonders, are our digital possessions any different?
Whether the bill passes or not, one thing is clear: if you want to retain control of your image in the afterlife, best plan your online funeral yourself.