Benjamin Stassen

Digital Legacy Association urges hospices to support patients in managing their digital estate

United Kingdom: Leaving A Digital Legacy In Your Will

December 10, 2014January 2, 2015 Eleanore

Click here to view original web page at United Kingdom: Leaving A Digital Legacy In Your Will

On 16 April 2014, the Law Society published a press release encouraging testators to leave a list of their online accounts, such as email, banking, investments and social networking sites like Twitter, as part of their arrangements on death. Leaving specific wishes as to what should happen to such digital assets is something that we at Wedlake Bell have promoted for some time, and forms part of the standard information we discuss with clients when they make their Will.

Whilst we encourage clients to list their digital assets, regrettably the law as to how such items pass on death is far from clear. It largely depends on the type of account and service provider as to whether loved ones can access your account after you die. However, Google is one of the service providers that has addressed the issue. It was announced on 11 April 2013 that Google users can specify which of their “trusted contacts” can access their accounts after they die, or alternatively to direct that their accounts be deleted. The wishes will be implemented after a fixed period of inactivity (a minimum period of three months). The wishes are set up through the “settings” option for the relevant account and effectively allow users to create an online Will. The tool applies to Google-run accounts such as Gmail, YouTube and web album Picasa.

Unfortunately, accessing online accounts after death remains a problem with many other service providers, as highlighted in the case of Benjamin Stassen in the United States of America.

The Case of Benjamin Stassen

Benjamin Stassen committed suicide in late 2010 without leaving a note. As personal representatives of his estate, his parents sought access to his online records for an explanation as to why he committed suicide. They contacted Google and Facebook asking the companies to release their son’s passwords so that they could access his Gmail and Facebook accounts. Google complied but for months Facebook refused on the grounds of privacy. It was only after the Stassens threatened further legal action that Facebook allowed them access, and even then it was on the basis that the Stassens did not share the content with third parties. Facebook made clear that they were making a unique exception and their policy remains that a user’s account cannot be accessed by their heirs after death.

Most online service providers bind users by their terms of business. Personal representatives can close a Facebook account or turn it into a ”memorial page” but under their terms of business, cannot access it.

Benjamin Stassen’s parents obtained a Court Order forcing Google and Facebook to give them access to their son’s records. Google complied with the Court Order. However, whilst the Order released Facebook from their duty of client confidentiality, the company is standing by its policy of not allowing personal representatives access to accounts, and so far as we are aware, has continued to deny the Stassens access to their son’s account.

Personal Data

You can see why Facebook did not want to grant Benjamin’s parents access to his personal data. The law in relation to privacy is a tricky one. The law in the US is, of course, different to the law in England and Wales. In England there is no specific law about privacy. Article 8 of the Human Rights Act 1998 is often cited by celebrities in relation to a breach of privacy, but this only applies to state bodies and not individuals and there is no specific case law about the release of personal data to executors or personal representatives.

Online Assets

The emergence of cloud computing has led to assets being stored on remote servers which may be located in jurisdictions outside the UK. For example, Apple’s i-Cloud which stores music, films, TV and any other downloads made by a user together with e-mails and personal data. Apple’s policy is to delete all e-mail and data from i-Cloud following the death of a user. However all content downloaded on its i-Tunes service is subject to a licence which can be revoked on a user’s death. It is not clear how Apple will treat downloaded content following a user’s death but it seems that they would have the right to revoke the user’s licence and delete potentially valuable content.

As digital assets are not tangible property it seems unlikely that a person could bequeath their online music collection to beneficiaries in their Will in the same way as they would could leave, for example, their C.D. collection. This is because the C.D. collection is a physical object which can be left in a Will whereas digital assets are not defined by law in the same way.

Clearly the law in this area has not yet caught up with technology. However, enterprising companies have exploited the gap in the market for bequeathing digital assets. For example, Legacy Locker allows people to store online passwords so that executors and personal representatives can access online accounts following their death.

Creating an inheritance for your digital assets and data

The best way to deal with online assets and personal data is to leave specific instructions as part of your Will detailing the online accounts you own and granting your executors access after your death. As a Will becomes a public document after death, it is not wise to include this information in the Will itself; however, a Letter of Wishes, which is a personal document to executors, could be written listing online accounts and how the executors can access those assets, together with specific wishes in relation to each account (e.g. whether it should it be closed, or access given to a named beneficiary). In addition, those who have Google-run accounts should also update their settings for the relevant account to mirror the same wishes in case there are any problems with beneficiaries accessing the accounts with the details given in the Letter of Wishes.

If a user has especially important online assets or data, such as valuable emails or photos, it would also be wise to create a hardcopy of these or save them to a disk or memory stick. Hardcopies can pass under a Will as physical property and will pass to whoever inherits the user’s personal effects (or the user can name a specific person to inherit them).

However notwithstanding these steps, executors are at the mercy of service providers and problems may be encountered if service providers do not recognise the consents given in a Letter of Wishes. There may also be jurisdictional issues at stake. However, for the present (or at least until other service providers follow Google’s example or a test case is taken), setting out express instructions in a Letter if Wishes gives the user the best chance of enabling his loved ones to inherit his personal digital effects.

When will Digital Death go mainstream in Israel?

April 21, 2014July 29, 2014 Eleanore

You may not relish thinking about you or your family suffering from injuries or illnesses in the future, yet you have an insurance covering these very options, right?

The possibility of your untimely death is not something you enjoy thinking about, yet you make a will just to be on the safe side, correct?

The probability of you or your loved ones dying is not something you like thinking about, yet you sit down with your spouse, children, siblings or parents, and discuss your digital legacy, assets and estate, just as a precaution, true?

Oh, you don’t?

Let me guess why: Because you haven’t thought about it yet.

That’s OK, I didn’t think about it either. Neither did my brother before he was killed when he was hit by a car on March 2, 2011.

The term “Digital Death” refers to the digital legacies, assets and estate the “modern deceased” leave behind, of both financial and sentimental value. It’s everything you have digitally created and stored: Offline in files, pictures and videos in your computer, tablet or smartphone, and online in emails, social networks, cloud storage services, online banking accounts, virtual shops and others.

While we may not be old or wealthy enough to accumulate many physical assets, we probably are internet savvy enough to accumulate digital assets (How many online accounts do you use? How many do the younger members of your family use?).

Dealing with physical assets of the deceased is something we already know how to do: We have legislation, legal precedence and social norms to guide us, as well as experience gathered over a long period of time. This is not the case with digital assets, however. There is no legal precedence in Israel (and only a few in the world), no local social norms and no Israeli legislation.

As this is a relatively recent phenomenon, there is very little personal experience as well – but that’s going to change, soon. The number of people dying with no one but the deceased knowing neither where he or she stored all this digital wealth nor their usernames and passwords, is growing exponentially.

In the United States, five states currently have Digital Death legislation, and 18 are in various stages of catching up. Each state is struggling to define its own solution, to various degrees of scope and success, as there is (as yet) no Digital Death Uniform State Laws or Federal Law.

In Israel? There is none.

International internet providers such as , , , , and LinkedIn clearly publish their policies regarding posthumous access online.

of the Israeli ISPs whose policies I have been checking on a regular basis since 2012 publish a policy regarding posthumous access to the accounts of their users: Netvision 013, Bezeq International, , Internet Rimon, Café TheMarker, and Israblog (which is now defunct – another form of digital death to all the content stored in it). Even the ISPs that actually have a clear posthumous policy and procedure, such as , don’t publish it online. I gathered their varying policies one by one (they are detailed in my blog, here: Technical Guide), as a service to the public. Some Israeli ISPs policies might surprise you with how easy – or how difficult – it will be to kin or heirs to gain access to accounts of deceased relatives or loved ones after their death.

As the awareness of the importance of Digital Death grows, people are encouraged to manage their digital assets ahead of time. Even the USA.gov blog posted about it.

In Israel? Using an online solution to manage your digital assets, as it is done outside the text of an official will, shall have no legal validity (according to Israeli Inheritance Law and Regulations, Chapter 1, clause 8a). Israel allows only one will and only in one format: Pen on paper (clause 18-20 in Chapter 3: Inheritance by Will, Article one).

Is the most unbearable scenario of all for you that in which people go through your private, personal stuff after your death? Even loved ones, or especially loved ones? That’s understandable, as we all cherish our privacy while we’re alive. Do we also cherish our privacy after our death? Some international ISPs – like – and some Israeli ISPs – walla!, Netvision or Bezeq International – will release the content of your email account to your kin or heirs.

So you should manage your digital assets regardless to what your wishes are: there are no right or wrong choices, only YOUR choices vs. choices made by outside factors, such as the changing policies of the various ISPs.

Do you remember that horrible moment when the technician lifted his or her gaze and sadly, not quite looking you in the eyes, told you your hard drive is lost beyond repair and with no hope of recovery? Remember that hollow feeling in the pit of your stomach when you realized your phone or tablet was stolen, with irreplaceable pictures and videos inside it? How about that time your house was broken into and your computer was stolen with invaluable data in it?

Now multiply those feelings with the pain of losing a loved one, and then multiply the data lost from that one occasion or one lost device with the loss of everything the recently deceased had stored digitally for the past who-knows-how-many-years, and you’ll get a glimpse of what families of the modern deceased are going through.

So, if you are using the Internet, manage your digital assets, legacy and estate, just like you would manage your insurance or will.

If you are a lawyer, advise your clients to manage their digital estate.

If you are an Israeli internet provider, have a clear posthumous policy and publish it online prominently.

If you are the Israel Defense Forces, add Digital Death data to the personal data you have soldiers fill in on their recruitment forms.

If you are an Israeli authority, put in place regulations for Israeli ISPs and adapt legislation to suit our age of technology.

Let’s not wait for the local version of sad stories such as Justin Ellsworth, Benjamin Stassen or to stir you into action. Let me be your wake up call.

Benjamin — protecting your Digital Legacy

February 25, 2014February 25, 2014 Eleanore

Benjamin Stassen, like most young adults in their early 20s, had a FaceBook account and many others that he used online. As with all social media websites and websites in general Benjamin has usernames and passwords that kept others from accessing his accounts. Like everyone else, every time he used FaceBook (and other sites) he had to ‘sign-in’ in order to get into his account, and into his online life.

When Benjamin Stassen suddenly committed suicide in 2010 his distraught parents, hoping to gain some insight into why their beloved son had taken his own life, looked to his FaceBook and other social accounts for answers. They needed access to what is termed his ‘digital legacy’. What they got instead was a wall, unknowingly put up by Benjamin himself and guarded by ‘user agreements’, that made it extremely difficult to do that. In fact, it was almost impossible and has set off a debate about what constitutes ‘privacy’ after a loved one is deceased.

The Stassens eventually persuaded Google to give them access to their son’s email (through a court order) and FaceBook, grudgingly, followed suit but the problems they faced, and the concerns that their fight brought up, have shed light on an area of the internet that is still legally murky; who should get access to someone’s digital legacy in the event of their death and how can this be made legally possible?

It’s an important question to be sure. Many people have digital legacies that are quite extensive and even quite valuable. For example, what if a person has digital music that they have purchased and stored online in the cloud? Who has the right to this, and how does that person access it? Information, like that the Stassen’s were looking for, is the same and in some instances may be very important.

In the United Kingdom a study termed ‘Dying in a Digital Age’ found that although 4 out of 5 people have digital assets less than 10% of them have given any thought to how they will pass on these assets after they themselves pass on. Bank accounts, ISAs and online collections of digital art and music all have username and password protection but still very little in the way of protection for surviving family members.

The debate has just started and will get much more heated as more and more people pas that have digital legacies and no digital ‘last will and testament’ to say who gets access. Hopefully someday, when a solution is found, the light that was shed on this problem will have meant that Benjamin Stassen’s death was not completely in vain.

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