Digital death is still a problem. A widow’s battle to access her husband’s Apple account

Kerry B. Collison Asia News: What happens to your

Experts are urging us all to think about what will happen to our ‘digital footprint’ after we die

Many of us turn to the virtual world to mark major life events – graduating from school, scoring a promotion, getting married or having a baby.

But what happens to your “digital legacy” after you die?

Grieving family members and friends would no doubt be aghast to come across a nasty comment about a departed loved one on their Facebook page or see a troll attacking their Twitter account.

So as morbid as it may sound, lawyers and web experts are urging people to include specific instructions in their will about what happens to the digital footprint they leave.

“In an age where digital data has increasing economic and sentimental value, it is sensible to leave clear instructions in your will about what should happen to, for example, social media content after death,” said Robert Rhoda, a dispute resolution lawyer with law firm Smyth & Co in association with RPC.

Our digital afterlife is not something most people think of and tech companies are still grappling with policies to adequately deal with the issue.

It’s a relatively new area of the law, Rhoda said, adding that people should consider leaving a “digital legacy” to avoid difficulties for those left behind to deal with the issue.

“Administering digital assets and social media content is a novel legal issue,” he said.

“Leaving a ‘digital legacy’ enables your personal representatives to liaise with service providers in line with your wishes. This is preferable to leaving passwords with relatives, which can cause them, often unwittingly, to breach laws related to the misuse of computers and data privacy.”

In Britain, the Law Society of England and Wales has started advising people to leave instructions on what should happen to their social media and other online accounts when they die in order to make it easier for family members to piece together their digital estate.

But Rhoda warned that the virtual world was not afforded the legal status of tangible assets.

“Social media accounts don’t have the same legal status as fixed assets, which form part of an estate, and it is not always clear who ‘owns’ them or, rather, who has the right to access them, once the user has died,” Rhoda said.

In recent years, several cases have emerged to test the law.

In 2005, the mother of a US soldier who died in Iraq went through a long legal battle with Yahoo to gain access to his email account.

In 2011, the family of a 15-year-old boy who committed suicide spent years in and out of court to gain access to his Facebook account, arguing that they wanted to see if there were any hints on his page that would explain his decision to take his own life.

In Australia, a recent study by a government body that specialises in wills and guardianship found that while nine out of 10 people have social media accounts, just one in five have spoken to their loved ones about what should happen to their online profiles when they die.

Lokman Tsui, assistant professor of communications at Chinese University, says there needs to be more awareness of the issue.

“This is something that is really critical but that not a lot of people have given much thought to,” said Tsui, whose research areas include new media and how policies should deal with emerging technologies.

“Some of our most private thoughts and conversations are in our emails and social networks but very few people have thought about what happens to that stuff when they die. This is a new area and there are no ‘norms’ that have crystallised about it.”

The topic raises a raft of issues involving data privacy, ownership and the security of a dead person’s account.

Tsui, who used to work at Google as head of free expression for the Asia-Pacific region, said the search engine introduced an “inactive account manager” last year. The feature allows the account holder to give other people access to their Google profile after they die.

Facebook, which has 1.3 billion users, offers two options: the account can be deleted permanently upon the family’s request or it can be converted into a memorial profile.

When an account is memorialised, sensitive information such as contact details and status updates are removed. No one can log into the account but friends and family can leave posts on the wall in remembrance.

Jed Brubaker, an academic at the University of California, Irvine who is researching death, identity and social networks, said this Facebook option was a double-edged sword.

“Memorialised profiles can be powerful places where the deceased’s social network can gather and memorialise the life of their friend,” he said.

“But in my research, unexpected encounters with deceased profiles has been the most troubling aspect of post-mortem profiles continuing to exist on Facebook.

“People can stumble across posts made to post-mortem profiles in their ‘newsfeed’, mixed in with other casual social media content. These encounters can be alarming, especially when a person is not expecting to see this kind of content.”

In its policy, Facebook says it tries to prevent memorialised accounts from appearing in ways “that may be upsetting to the person’s friends and family”.

A spokesman for Facebook, which declined to reveal how many profiles have been memorialised, said they “give people a platform to remember and celebrate the life of their loved ones after their passing”.

Instagram, which is owned by Facebook, has a similar policy to its mother company.

LinkedIn has an online form that allows a profile of a dead person to be removed and Twitter’s policy says an account can be deactivated by an immediate family member or someone who has been authorised to act on behalf of the estate.

Yahoo, which is popular in Hong Kong, will deactivate an account once staff can verify documents such as a death certificate. Access to the account for third parties is not allowed.

A spokesman for the Office of the Privacy Commissioner for Personal Data said that under the city’s laws, personal data was defined only as information which related to a living person.

“When the records relate to a deceased person and no living individual, they do not contain personal data” and were not subject to data protection laws, he said.

Two years ago, Hong Kong lawyer Ryanne Lai Hiu-yeung co-founded an internet start-up called Perpetu to tackle the issue.

Services offered include sending farewell messages on Twitter when you die, the deletion of your emails or their transfer to an authorised person, and deletion of your Facebook account.

The business is still operating but Lai says she is no longer actively promoting it. About 2,000 people signed up and about half were from Hong Kong.

“Most of them are in the ‘internet generation’ so I won’t say they are too young to think about death,” Lai said. “To me, this is more about life than death – it’s about how much you treasure your online presence and content that you create on a day-to-day basis.”

Richard Norridge, of law firm Herbert Smith Freehills, says the intrinsic value of our digital assets is still unexplored territory and someone’s digital legacy can come in many forms.

“It may be music or films held online, virtual currency or perhaps online accounts,” he said.”For many, it still does not form part of their thinking when they prepare their will, perhaps because those engaged in estate planning concentrate on the assets of greatest value.”

Norridge said Facebook’s memorialisation option was a fraught one. “The account is preserved in that it can still be viewed, but no one can log into that account and accounts cannot be modified. Thus if unwelcome comments are posted, they are memorialised, too,” Norridge said.

What Happens to Your Digital Estate After You Die?

What Happens to Your Digital Estate After You Die?

Ever wonder what happens to your social media accounts, email, online texts and other digital content when you die? Do they simply expire, leaving nothing behind but digital dust? Or can you authorize someone to take them over after you pass on? And if so, what powers would such a person possess?

In response to such quandaries, tech giants Facebook and Google have created systems to deal with death—such as suspending inactive accounts, and creating online memorials. But these steps only address part of the problem.

This novel issue was recently confronted by the Delaware Legislature, which became the first state to pass a uniform statutory scheme granting fiduciary trustees full access to a decedent’s online accounts and digital content, just as they would with more tangible assets. If this trend continues, more people may be able to confidently plan for the disbursement of their digital estate.

Avoiding Digital Death

Left unchecked, social media and online accounts may expire with the decedent. This phenomenon is commonly referred to as “digital death.”

Digital death can be emotionally devastating: The permanent loss of a loved one’s intimate thoughts and feelings can exacerbate the grieving process. Social media sites like Facebook and MySpace also routinely restrict account sharing in their terms of use.

But digital death can also have financial repercussions, as digital assets can have real value. A 2011 survey by McAfee found American consumers valued their digital assets at an average of $55,000. Such assets include digital photos, digital music, client lists, domain names, social media accounts, online manuscripts, blogs, email accounts, computer code, online gaming avatars and more.

Delaware Grants Fiduciaries Full Access to Digital Assets

In an effort to provide a workable framework by which to administer one’s digital estate, Delaware recently passed the Fiduciary Access to Digital Assets and Digital Accounts Act, 12 Del. C. Section 5001, et seq., in August.

What makes the act so unique is that it is the first adoption of the Uniform Fiduciary Access to Digital Assets Act (UFADAA), drafted by the Uniform Law Commission (ULC), a nonprofit group that lobbies to enact model legislation.

According to the ULC, the UFADAA solves the digital estate problem by using the concept of “media neutrality.” This means if a fiduciary would have access to a tangible asset, that fiduciary will also have access to a similar type of digital asset. The UFADAA also defers to an account holder’s privacy choices as expressed in a document (like a will or trust), or online by an affirmative act separate from a general terms-of-service agreement. Thus, an account holder’s desire to keep certain assets private will be honored by the UFADAA.

One reason the UFADAA is so important is because current federal legislation regarding access to digital assets is hidden in the Stored Communications Act (SCA) and the Computer Fraud and Abuse Act (CFAA)—both passed in 1986, with only minor revisions since then. Notably, the SCA broadly prohibits an “electronic communications service” (like an email service or social network) from disclosing the “contents of a communication” to parties other than the sender or recipient. The CFAA imposes criminal penalties (or civil liability) for “unauthorized access” to computer hardware, devices, and stored data.

To address this concern, the act states a “fiduciary with authority over digital assets or digital accounts of an account holder … shall have the same access as the account holder, and is deemed to (1) have the lawful consent of the account holder and (2) be an authorized user under all applicable state and federal law and regulations and any end user license agreement.”

Despite its well-intentioned goals, detractors like Jim Halpert, an attorney with DLA Piper and director of the State Privacy and Security Coalition, still oppose the act. “This law takes no account of minimizing intrusions into the privacy of third parties who communicated with the deceased,” Halpert told Ars Technica. This includes highly confidential communications to decedents from third parties—like doctors, psychiatrists and clergy—who would not expect an executor to review the communications. Halpert also claims it will cause confusion with federal law.

The act is set to take effect Jan. 1, 2015.

Other States’ Approaches to Divesting Digital Assets

Delaware was not the first state to address digital assets. In 2005, Connecticut passed a narrow law giving access to email accounts for deceased residents. Since then, Rhode Island, Idaho, Indiana, Oklahoma, Nevada and Virginia have all passed legislation providing varying degrees of access to digital accounts.

Bills are also pending in a dozen other states, yet all but one has failed to pass. In Pennsylvania, HB 2580—a fourth-generation bill to allow access unless it was restricted by will or court order—has been pending since August 2012.

Implications: Planning for Your Digital Estate

Digital assets have largely replaced tangible ones in our modern world. Yet the laws governing access to these assets remain outdated and inconsistent.

Although a form of personal property and part of a decedent’s estate, commentators have observed that rights regarding digital assets are intertwined in a complex web of federal, privacy, copyright, intellectual property and state law. The result is fiduciaries are often left with little authority or guidance in collecting, distributing and settling a digital estate. And the problem may be more widespread than previously understood. According to a March 2012 article in Technorati, 30 million Facebook accounts belong to dead people.

Current federal law and the law of most states fail even to recognize a fiduciary as possessing authority over digital assets. And until more jurisdictions adopt the UFADAA, this lack of uniformity will only continue.

When a person dies (or is incapacitated) his or her fiduciaries and family members face particular challenges when administering his or her digital estate. After first identifying which digital property is significant, or has value, other obstacles include having to deal with: (1) passwords; (2) encryption; (3) criminal laws penalizing “unauthorized access” to computers; and (4) data privacy laws. Overcoming such obstacles can be tricky—but helpful guidance does exist.

Commentators suggest account holders take four steps to plan for death/incapacity. First, they should inventory their digital footprint by identifying accounts and determining if they have financial or sentimental value. This process should include listing usernames, account numbers and passwords (the average person has 25 passwords). This sensitive list should also be kept separate from their will; a probated will becomes a public record.

Second, account holders should routinely back up electronically stored information—especially if the data is stored remotely—so as to save fiduciaries from having to obtain access from remote service providers that are subject to various federal and state criminal and data privacy laws, like the SCA or CFAA. Fiduciaries would thus only have to deal with the aforementioned service providers in order to close or memorialize accounts.

Third, the account holder should make a plan for managing/distributing the inventoried digital property. This includes designating a fiduciary with power and authority over digital property, providing instructions for distribution, and securely deleting digital assets the decedent does not want passed on to his or her heirs. Understanding a site’s default terms with respect to whether certain accounts will be automatically frozen or deleted is also critical.

And fourth, the account holder should expressly authorize service providers to disclose private information to their fiduciaries so as to evidence their “lawful consent” thereto, and “authorized access” to the data. This can be accomplished by including a clause in a will identifying the above federal laws.

Given the explosion of online content and a comprehensive statutory scheme on the books, digital estate planning may soon become the new normal. Until then, a little knowledge may help stave off the looming specter of digital death.

Is Your Digital Life Ready for Your Death?

The big sleep mode: Preparing for your tech life after death

Your money is tied up in online banking, your digital photos and home movies are stored in the cloud, your entire social life is on Facebook and your important documents live on a password-protected computer — when it comes to the digital footprint you leave behind after you die, there are major practical (and legal) implications for tying up all those loose ends.

While you may have considered what to do with your house after you die, technology and legal experts are now warning that our digital lives need some attention too. A 2013 global survey from McAfee found that we store roughly $35,000 worth of digital assets on our devices — almost the same price as a new BMW.

Speaking to CBS News last month, digital legacy specialist and co-founder of the blog The Digital Beyond, Evan Carroll said laws on digital property vary from region to region, while some people address their digital estate in their will and some don’t.

“We have entered this time as a society where we’re a bit ahead of our laws and our policies with respect to our digital policy,” said Carroll.

In Australia, NSW Trustee & Guardian (the government department that provides legal and estate planning advice for Australia’s most populous state) says that the issue isn’t just one of financial losses.
As an example, the department says 9 out of 10 Australians have a social media account, but 83 percent of these people haven’t discussed what happens with these accounts after they’re gone.

NSW Trustee & Guardian Assistant Director for Legal Services Ruth Pollard said we all add to our “digital legacy” every day, but few of us have steps in place to look after this legacy in the event of death.

“The problem is that it is not as easy to transfer digital assets as it is tangible assets such as a car, house or shares,” said Pollard. “Without planning for death there is a danger that the digital assets will become inaccessible or be destroyed when a person dies.”

“With the increase in storing personal information online it is more difficult for executors to determine just what are your assets. Take for example online banking — it is very difficult for an executor to determine what bank or credit unions a deceased person was a member of [when] there are no obvious paper statements sitting in a folder in a filing cupboard anymore.”

Pollard says all Australians should take steps to future-proof their digital assets and simplify the process of executing their will. And while you may consider yourself too young to be thinking about the big sleep, these tips make good advice for anyone who has left their mark on the digital world.

Preparing your digital legacy

  • “Compile a list of all your digital assets and online services”

Include social media, cloud services, email, banking, PayPal, blogs, photos, video storage, eBooks and anything that you don’t want to slip into the digital ether.

  • “For each account or service list the location, the username and password and what files are stored”

If you have lots of passwords, you might opt for a password manager to simplify this. Pollard also suggests leaving instructions for your executor on digital locations for photos and videos, “otherwise a lot of family history and memories can be lost”.

  • “Check the terms of agreement, licence or policy of your account”

According to Pollard, different online accounts have different conditions for what happens to the account when you die, so it pays to know the difference. “Some social media providers may allow for accounts to be memorialised when a user dies (such as Facebook), but others may not,” she said. “Some providers (for example, Microsoft) may be prepared to provide copies of information, documents and photos on the account to the next of kin or the executor, whereas others may simply close the account or delete the contents.”

  • “Think about what you want to happen to [your accounts and files] on your death.

“Do you want social media accounts closed, or memorialised? Do you want photos or emails downloaded, printed and distributed to family and friends? Consider whether you wish to replace books and music with hard copies as ebooks and music purchased from iTunes and Amazon cannot be gifted by will as you obtain them under licence and cannot own them.”

  • If you’re making local copies of digital information, keep in mind that storage methods change over the years.

“Floppy discs aren’t really used any more…Will it be the same in 10 years time for the current methods of storage we’re using?

  • Lists of usernames, passwords and account numbers should not be put into your Will.

“There may be a number of people including your beneficiaries who will be entitled to have a copy of your Will, and so to ensure privacy and protect against fraud…include these instructions in a separate document and let your executor know where you keep this document.”

Digital Estate Planning

Digital Estate Planning

By Ryan Johnson, IT Director

A news story circulated not too long ago about a lawsuit brought by Bruce Willis against Apple involving the star’s right to transfer ownership of his vast iTunes collection to his heirs when he dies. Though the story was ultimately debunked by his representatives, it raised an interesting dilemma surrounding the ownership of digital assets and the transferability of those assets posthumously.

In our increasingly digital world there is a greater need to protect the digital assets we amass over time. Digital content can be any information that is published or distributed in a digital form, including data, photographs, images, text, sound recordings, images, video, or software. Digital assets include this type of content along with one’s online persona (including passwords to and content on social media sites). Currently, there are only five states that have laws governing digital estate planning.[1] As a result, an overwhelming majority of jurisdictions lack any direct statutory guidelines governing digital asset bequeathment, leaving loved ones in a vast gray area of the law. So while traditional estate planning plays a major role in protecting both tangible and intangible assets alike, the law has been slow to evolve with emerging technology.

Traditional Estate Planning

Essentially, one’s estate amounts to anything a person owns, tangible or intangible. Traditional estates are defined as a person’s interest in land or other property and consists of items that are owned and have value.[2] As such, traditional estate planning primarily involves a three-step process to posthumously dispose of property: (1) a consultation to consider an individual’s present and lifetime needs, (2) a thorough plan designed around meeting those needs during the client’s lifetime, and (3) the creation of a unified estate plan that balances the client’s needs during his/her lifetime with the needs of his/her estate after death.[3] Our increasingly digital world has added complexity to this process by creating a whole new class of digital assets that traditional estate planning tools may not be equipped to handle.

Digital Estate Planning

Digital estate planning has other benefits beyond the ability to successfully transfer digital assets to your heirs. It also makes life easier for the estate’s executor and family members, impedes identify theft, protects the decedent’s intellectual property interests, and preserves a decedent’s digital legacy.[4]

Currently, there is no uniform standard to bequeath one’s digital estate, however digital estate planning can be something as simple executory guidelines to one’s executor listing important URLs, usernames, passwords, security codes, and other information needed to access online accounts.[5] Among the most common digital assets are licenses, which are fully transferable within a trust. To facilitate such transfers, author Joseph M. Metrek suggests providing clients with a “Digital Asset Revocable Trust” (DART).[6] Essentially, the DART, like a traditional trust, will retain ownership of digital assets beyond the life of the grantor. Consequently, a trustee would have the authority to manage and transfer authorized licensing agreements to a client’s heirs based on the needs established when the estate was created.

In addition, an executor or fiduciary can mitigate the amount of personal hardship and grievance associated with digital estate planning by following a simple set of guidelines.[7] Experts recommend that fiduciaries implement the following crucial steps when administering a decedent’s digital estate:

  • “Seek the assistance of technical help if necessary.
  • Work on consolidating virtual assets to as few “platforms” as possible (e.g. have multiple e-mail accounts set to forward to a single e-mail account.
  • Obtain statements (or data) of the prior twelve months of the decedent‘s important financial accounts.
  • Consider notifying the [individuals] in the decedent‘s e-mail contact list and other social media contacts.
  • Change passwords to those that the fiduciary can control (and remember).
  • Keep all accounts open for at least a period of time to make sure all relevant or valuable information has been saved and all vendors or other business contacts have been appropriately notified, and so all payables can be paid and accounts receivable have been collected.
  • Remove all private and/or personal data from online shopping accounts (or close them as soon as reasonably possible).
  • The fiduciary should plan on archiving important electronic data for the full duration of the relevant statutes of limitations.”[8]

Conclusion

Sadly, many will not implement traditional or digital estate plans, leaving their loved ones to sort out unfinished details of their lives. Estate planning traditionally has been a service primarily utilized by the elderly, however increasing awareness among tech savvy clients can reduce the ambivalence towards estate planning.  Essentially, digital content owners face two distinct issues; (1) whether they really own their online digital content and if so, (2) how they can pass that ownership or the use of that content on to their loved ones. One thing is for certain – without digital estate mechanisms,  such as DARTs or executory guidelines, even Bruce Willis would not be able to ensure his loved ones were legally entitled to his vast collection of blues albums.

What Happens To Your Digital Assets When You Die?

What Happens To Your Digital Assets When You Die? – Infographics

This may sound new but the truth is the digital world is ridiculously part of everyday lives of many Filipinos. And because it is part of almost every Filipino’s lives, digital assets are accumulated by them over time.

In our growing advocacy for financial literacy, not only do we teach how to build up wealth and valuable physical properties and how to take good care of them. We also would like to teach about taking care of one’s assets that are built up online.

If you are a blogger or an online seller, most probably you have accounts in online “money banks” and payment systems such as PayPal, Google Wallet, Stripe, Adyen, etc.  You consider your money in these accounts as your digital asset.

And if you are a writer or an author, you may be keeping your works and files in your Kindle e-books. You know how valuable these digital assets of yours are. The same thing goes to musicians and songwriters who keep their unreleased songs in iTunes or other similar platforms.

These are some of the very important assets that are mostly overlooked by your family members and your financial advisor. That is if you have one.

In a survey data done online security company McAfee, online users worldwide value their digital assets starting from $35,000. That includes items like personal records, career information, special projects, hobbies, and music and art files.

That’s why I believe that aside from our physical assets we should also ensure that we are able to pass on to our intended family members and beneficiaries all our digital assets in the event of our death.

Here’s a very clear yet disturbing infographic from McAfee that made me think further about taking care of my non-tangible assets in my online portfolio.

DigitalAssets_Infographic1

The sadder part is that digital estate planning is very new and countries like the Philippines have no laws or regulations with regards to the access to your online accounts by your heirs.

However, there are some ways and measures to take so that your loved ones can access your online accounts or receive your digital assets in similar ways they would receive your money from investment in paper assets and other tangible properties like your land or house or car.

How Can A Digital Estate Plan Help Your Family After You Die?

Creating a digital estate plan will help your family on the following issues:

1) They can easily locate any of your accounts online
2) They can access your accounts and the information you left in those accounts
3) They can determine if your digital asset has any monetary value
4) They will be able to know if your digital assets have to be distributed or transferred to any beneficiary or loved one.
5) This will also helped them help you avoid online identity theft.

What Happens To Your Digital Assets When You Die And How To Create A Digital Estate Plan?

1. Keep an inventory of all your online accounts. Your log-in IDs and passwords should always be kept in a secure place. You can assign a digital executor and let him know where to access your information. Another option is using a service like PasswordBox where you can transfer your online information to a digital executor upon your death.

Digital assets may include the following:

  • Computers, external hard drives or flash drives, tablets, smartphones, music players, card readers, digicams, and other digital gadgets
  • Data and information that are stored online (cloud) or in a physical device or gadget
  • Online accounts such as email and social media accounts, shopping accounts, photo and video sharing accounts (Tumblr, Flickr, etc.), online storage accounts, websites, and blogs that you may manage
  • Domain or website names
  • Intellectual property such as your copyrighted songs, lyrics, poems, logos, trademarks, and other secret codes and inventions you created or written.

2. Determine and decide what to do with your online accounts. Each of your digital asset should be clearly given instructions on how they should be handled. How should each asset be handled? Know which of them should be saved, deleted, or transferred to your loved ones, friends, or business partners.

If you are making money with these digital assets then determine now who to transfer them to and who should receive all the access information after you are gone.

3. Assign a digital executor. Choose someone who is patient, highly-organized and is detail-oriented. He should be committed to listening and following your wishes as you have written in your will. And of course, he should be tech-savvy and comfortable using the Internet and different social media websites.

As much as possible, name different digital executors for your personal, financial, or business-related digital assets.

4. Save and store data and information in secure yet easy to access location. You can securely store and entrust your data to a chosen, trusted person such as your independent counsel. You may also keep them in a secure online data-keeping services, or simply store them in hardware and lock them up in your cabinet or vault.

The most important thing that you inform one or two persons you really trust such as your spouse, adult kids, and of course, your digital executor on HOW and WHERE they can access your files and data.

5. Include your digital assets in your estate plan. Again, digital estate planning is still alien to Philippine legal industry. But then formalizing your plan to include your digital assets. Look back to our first four steps on how to make your digital estate plan effectively executed after you are gone.

However, do not include your passwords and other digital asset access information in your will. Remember that a will becomes a public document when you die and that anyone can read it. Make a separate document containing all the necessary information without the need to formally change your will.

What happens to you digital assets after you die? They depend on how you will follow the steps given above.

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