How to settle your loved one’s digital estate

Giving up the ghost online and what it means to you

A GHOST tour in Edinburgh was where I first discovered the morbid truth about why Victorian headstones often had bells attached.

Buried by mistake? Ring urgently for service.

We’ve come a long way since then, and thanks to modern medicine can be certain when someone’s been ‘called home’ before doing the needful.

If you’re squirming a bit in your seat at the thought, it’s natural. The D word is nobody’s favourite and talking about it is the biggest slap in the face to any healthy dose of self-denial about what’s at the ‘end of the line’.

Anyway, let’s say you are doing a bit of planning and you’ve sorted out what to wear, who to invite and all that, then as a child of the Digital Age you must also put on your ‘to do’ list who can access your social media accounts and other digital assets when you’re gone.

Apparently it’s a bit of a grey area in legal circles and they want to do something about it.

At the helm is the NSW Law Reform Commission which his reviewing laws affecting life beyond your digital death.

Initially they’ve called for submissions from the legal profession and later in the year the public can throw in their two cents worth (and for those born after 1992, when the two-cent coin was demonetised, it means your opinion).

When making the review public, Attorney General Mark Speakman said: “In today’s hyper-connected world, an unprecedented amount of work and socialising occurs online, yet few of us consider what happens to our digital assets once we’re gone or are no longer able to make decisions.

“This is leading to confusion and complexity as family, friends and lawyers are left to untangle digital asset ownership issues, applying laws that were developed long before the arrival of email, blogs, social media and cryptocurrency.”

What the LRC is more worried about is who can access your digital stuff, but although it’s inappropriate to laugh at a time like this, this quote from Speakman was just a little bit ironic.

He said: “When a loved one passes away, bureaucratic hurdles and legal uncertainty are the last thing families and friends feel like confronting, so we need clear and fair laws to deal with these 21st Century problems.”

Bureaucratic hurdles and legal uncertainty are what families and friends are confronted with when a loved one passes away.

I suppose we’ve really only got ourselves to blame, being the most connected of all countries in the world. So, the review will focus on NSW, Commonwealth and international laws, including those relating to intellectual property, privacy, contract, crime, estate administration, wills, succession and assisted-decision making.

The LRC will scrutinise (their words, sounds expensive) the policies and terms of service agreements of social media companies and other digital service providers.

Facebook is at a bit of an advantage here already, having had lots of experience in this area.

On a more serious note, social media companies do handle sites of the deceased differently, from memorialising them to simply shutting them down.

Having a say in what you’d like to happen, particularly given there can be a story of a whole life recorded there, is important.

If you haven’t made arrangements for anyone to take control of your sites or access private emails, the LRC is considering whether additional privacy protections are needed.

The issue of ownership of digital assets upon death cuts across many different areas of law which is why it’s not clear and fair but complicated.

Here I was thinking I’d just leave a list of my 70,000 passwords for someone else to troll through my social media, blogs and websites if they could actually be bothered.

But really, who could forgo the opportunity to plan ahead by scheduling posts and memes to appear long after I’m gone, saying things like ‘I can see what you’re doing’ or ‘There is no Planet-B’.

Visit www.lawreform.justice.nsw.gov.au to read more.

Ch IV.3. Security Concerns Surrounding Digital Estates

Proper digital estate planning must account for the digital asset transferor’s security concerns. Wills are poor legal devices for managing digital asset information because traditional wills become public, thus exposing the location and access information of the digital assets to potential threats. Including passwords and other confidential information in a will is likely to endanger the security of one’s digital assets and could undermine the entire estate plan. Cybercrime represents a real and serious threat to any digital estate transfer. Identity theft is the fastest growing crime in the world, impacting over 27,000 people worldwide each day to the tune of an estimated $56 billion each year. In 2010, the IRS allocated over $12 million to over 5,000 stolen identities of deceased U.S. citizens, in connection with scams perpetrated via the decedent’s “Electronic Survivorship and Non-Transferability” clause of its terms and conditions, will permanently delete contents of the user’s account upon the user’s death.

Google’s policy differs slightly, stating that in some “rare cases” it may provide a deceased user’s content to an authorized representative. Hotmail/Outlook states that it will provide a copy of email messages, contact lists, attachments, and other content after proper authentication of ownership. Social media site terms and conditions may also vary. Ultimately, digital assets held or stored by online service providers will be subject to the terms of the service contract, binding the account holder and the service provider.33 Disputes pertaining to the digital asset ownership in reference to online accounts are settled by courts construing the terms and conditions of the contract of the third-party online provider through the application of state law.

Identity Theft Safeguard

Ch IV.2. Ownership of Digital Assets

Second, while it is crucial to identify the digital asset’s location and accessibility, digital asset ownership rights, copyrights, and accessibility, digital asset ownership rights, copyrights, and contractual rights are often less clear than traditional tangible property because the digital assets are often stored, created, and managed by a third party. Ownership rights of digital assets stored with third parties are not always as hereditary in character because “the terms of the contract between online service providers and account holders . . . govern the ownership and inheritability of ‘digital assets.’”24 To determine the ownership rights of a digital asset, one must examine the user’s property rights relative to those of the third-party online service provider who is storing managing, and protecting the digital asset. In the majority of instances, the third party provider will own the property rights to the account.

For example, in the case of Facebook, an account is the property of the company, and not the individual end user.26 However, at the same time, personal information stored on the account, such as pictures, social media postings, status updates, and other similarly situated data, can be protected by copyright law and constitute a decedent’s intellectual property. Problems arise when a beneficiary wishes to obtain access to a digital asset, but the asset is located in an account where the beneficiary does not have immediate access. If the third-party provider closes the decedent’s account and deletes any data stored on the account, irreplaceable digital property—which may contain pecuniary and sentimental value—could be lost forever. Furthermore, it is unclear whether the third party has any duties to preserve these digital assets for the benefit of the beneficiaries. Depending on the type of digital asset and service provider storing the digital assets, ownership rights and the legal ability to access digital assets may vary significantly.

For instance, a comparison between three similar email service providers shows that service provider contracts may differ significantly in respect to how they treat a decedent’s digital content. Yahoo!, pursuant to the “No Right of Survivorship and Non-Transferability” clause of its terms and conditions, will permanently delete contents of the user’s account upon the user’s death. Google’s policy differs slightly, stating that in some “rare cases” it may provide a deceased user’s content to an authorized representative. Hotmail/Outlook states that it will provide a copy of email messages, contact lists, attachments, and other content after proper authentication of ownership. Social media site terms and conditions may also vary. Ultimately, digital assets held or stored by online service providers will be subject to the terms of the service contract, binding the account holder and the service provider. Disputes pertaining to the digital asset ownership in reference to online accounts are settled by courts construing the terms and conditions of the contract of the third-party online provider through the application of state law.