Inaccessibility of Digital Assets

Digital estate planning is becoming an increasingly common practice.  However, security measures of internet and technology corporations have the potential to disrupt the implementation of a testator’s plans.

recent news article tells the story of a woman named Anthea Grant, who purchased an iPad for use during two years of cancer treatment.

The device was used primarily for entertainment during chemotherapy sessions and for video communication with Anthea’s sons, Josh and Patrick.

After Anthea’s death, her sons realized that they did not know their mother’s Apple account password.  Anthea’s sons are the sole beneficiaries of her Estate.  There is no controversy with respect to the sons’ right to possess the device.  However, Josh and Patrick have been unable to obtain access to the tablet to see if it contains any relevant information.

After providing their mother’s death certificate, a copy of her Last Will and Testament, and a letter from their solicitor, as had earlier been requested, Apple is now asking for Anthea’s written  instructions that Josh and Patrick are authorized to access her account.  As this is no longer an option, Apple recommends that the brothers obtain a court order to prove that Anthea was the owner of the iPad and Apple account, citing the American Electronic Communications Privacy Act as its rationale in denying access.

While Anthea’s sons do not wish to incur the legal fees necessary to obtain a court order for the release of the Apple account information, they wonder if the iPad contains any digital assets of any financial or sentimental value.

A digital estate plan frequently facilitates access to computer accounts, with a list of all accounts and login information.  Had Anthea created a digital estate plan, including such information, this issue would not likely have emerged.  Nevertheless, legislation in Canada and elsewhere remains an outdated barrier that should be amended to address the prevalence of digital assets in estate planning and administration.

Thank you for reading.

Academic Articles and Papers

Academic Articles and Papers

  • In 2013, an article titled: “Facebook after death: an evolving policy in a social network” by Damien McCallig was published.
  • In 2013, an article titled: “Coping Online with Loss: Implications for Offline Clinical Contexts” by Joanna Pawelczyk was published. Thank you Dr. Carmel Vaisman for sending me the link.
  • In May 2013, Maria Perrone’s article: “What Happens When we Die: Estate Planning of Digital Assets” was published.
  • In May 2013 an article by Jed R. Brubaker, Gillian R. Hayes, and Paul Dourish was published, titled: “Beyond the Grave: Facebook as a Site for the Expansion of Death and Mourning“.
  • paper titled “Digital Afterlife: What Happens to Your Data When You Die?” was published in May 2013, by Stephen S. Wu.
  • In May 2013 a paper titled “Digital Estate Planning: Is Google Your Next Estate Planner?” was published, by Jamie Patrick Hopkins.
  • In April 2013, the paper “Afterlife in the Cloud: Managing a Digital Estate“, also by Jamie Patrick Hopkins, was published.
  • In February 2013 a paper titled “What happens to my Facebook profile when I die?” : Legal Issues Around Transmission of Digital Assets on Death” was published by Lilian Edwards and Edina Harbinja. Thank you Paul Golding for sending me the link.
  • Since September 2012, the article “There Isn’t Wifi in Heaven!” – Negotiating Visibility on Facebook Memorial Pages by Alice Marwick and Nicole B. Ellison is available online for free download. Thank you Dr. Carmel Vaisman for sending me this link.
  • In 2012, an article titled “Grief-Stricken in a Crowd: The Language of Bereavement and Distress in Social Media” was published, by Jed R. Brubaker, Funda Kivran-Swaine, Lee Taber and Gillian R. Hayes.
  • In 2011, the article “”We will never forget you [online]”: An Empirical Investigation of Post-mortem MySpace Comments” was published, by Jed R. Brubaker and Gillian R. Hayes.
  • In 2011, the article “Security and privacy considerations in digital death” was published by Michael E. Locasto, Michael Massimi and Peter J. DePasquale.
  • In 2010, Jed R. Brubaker and Janet Vertesi’s paper “Death and the Social Network “was published .
  • In 2008, the current term “Digital Legacy” was then referred to as “Digital Heirlooms” and an article titled: “On the Design of Technology Heirlooms” was published by David Kirk and Richard Banks.
If you come across any other papers or articles, please be so kind as to send me the link, so I could add them to the list (with credit to you, of course). Email: death.in.digital.era@gmail.com, Facebook page: Digital Dust.
Digital death is still a problem. A widow’s battle to access her husband’s Apple account

Wills, Trusts & Estates Prof Blog

As I have previously discussed, even people who believe they have a comprehensive estate plan may have overlooked what happens to their digital assets when they die. The idea is to address digital assets in your existing estate plan. Attorney coach, James Lamm, is teaching attorneys how to integrate specifics of digital estate planning.

Many people possess digital assets that may be of great value to them. However, the value of web domains, photos, videos, email, and social-media accounts may be lost if the owner does not take proper legal steps ahead of time. Digital estate planning is more complicated than traditional estate planning because the owner of assets is tasked with making sure to leave access to the heir. However, these sites may be password protected, encrypted, and governed by privacy laws. Lamm suggests some first steps that would help in the digital estate -planning process.

  1. Go through a test run and ask yourself if you were incapacitated today would your loved ones be able to gain access to your digital assets? Who would you want to have access?
  2. Keep a record of all of the things in your digital inventory with the user name and passwords.
  3. Keep a back up of your digital asset information.
  4. Reduce your plan to writing.

Death, Data and the Digital Hereafter

The digital afterlife: thinking about what happens to our online life when we die. Image credit: Richard Parker/Stuff.co.nz

The digital afterlife: thinking about what happens to our online life when we die. Image credit: Richard Parker/Stuff.co.nz

A soon-to-be-released science fiction movie, Transcendence, features Johnny Depp as a scientist who becomes immortalised as a digital entity – an event that is referred to by many as the Singularity. This is still rather far from reality, of course, but it did get me thinking about death and what happens to ‘our’ data – all those Facebook chats, Instagram photos and so on. I’m talking about the digital hereafter.

Your digital persona

It was around the turn of the millennium when I first started using the internet seriously (by which I mean how much time and energy I spent on the internet, not what I used it for). Back then, I spent my time online divided between MySpace, and plenty of forums. I certainly wasn’t thinking about a data backlog, or what would happen when I die. But as more and more of my life moved online, this has come to my attention as something not too many people think about. I don’t actually know, but I would guess that I have a profile at well over 200 websites, including social media sites, forums, retail and financial services, and any number of arbitrary web-apps that required me to sign up to use them just once.

My point is, as the internet has grown we have strewn our personal data far and wide across numerous websites, with little further thought for that data, sequestered in servers across the world. And in so doing, we have created a kind of avatar – a nebulous collection of data points in the cloud, that together makes up an online persona.

Your data after you die

Google, Facebook, and Twitter all have strategies to deal with accounts of the deceased – Facebook will ‘memorialise’ a profile if a family member can confirm the death of that person. This turns the profile of the deceased into a public memorial page, which won’t show status updates but still allows loved ones to post messages. Twitter just locks your information down, while Google has what they call the Inactive Account Manager – after a defined period of inactivity, Google will  transfer your data to a trusted contact and/or shut down your account. In general, it seems that the data will be made available to loved ones (or the courts) if absolutely necessary. Several companies have positioned themselves as managers of you digital legacy – covered in this blogpost. For a more in-depth discussion of digital estate planning, see this NY Times article published last year.

Now for some more outlandish options for the digital afterlife. Several companies have caught on to this opportunity, and are offering to immortalise your digital persona for posterity. Eterni.me promises to create a digital version of the deceased, which will continue to post status updates and send messages. The company will parse your data to create an virtual ‘you’ based on your likes, browsing history and previous social media messages. LivesOn is another such project, which promises to keep tweeting for you after you die. With taglines like ‘When your heart stops beating, you’ll keep tweeting. Welcome to your social afterlife.’ (LivesOn) or the frankly misleading ‘Simply Become Immortal’ (Eterni.me), these services are not for everybody. Personally, I find the idea of a dead loved one tweeting something inane rather distasteful, and I would be downright upset if a digital ghost started messaging me about the good times we had back when they were alive.

Corporates aren’t the only ones thinking quite seriously about this stuff – there is a website, The Digital Beyond, which has been started to discuss and document these issues. The owners of the site have also written a bookdiscussing one’s options for curating the digital remains of a loved one. Academia is getting in on the act, too:researchers in the UK are studying how Western public mourning practices are changing. They document massive growth in online mourning rituals, such as the aforementioned memorial pages on Facebook, blogs dedicated to the memory of loved ones, and so on.

Another way of dealing with digital remains

I would like to consider another aspect of this discussion, one which I have not seen discussed much: the value of that data as a public resource. Data has become the unofficial second currency of business in the 21st century – just look at mobile developers. They run at a loss for years, until someone will buy their captive audience from them as data for the great online advertising machine. As it stands, the digital remnants of a life belong to the company that owned that data to begin with. But I have a alternative suggestion, which would be massively useful if implemented correctly. What if, after a reasonable mourning period (call it five years to be safe), all of that data was parsed, anonymised, and made publicly available, for free? Think of the wealth of data that would represent, over the next few decades, or even centuries. Big Data is an overhyped topic right now, but we are already seeing it’s mark across the world. Think of the complex modelling and forecasting that would be possible. Think of the boost to academia, industry, commerce, financial services and even sport. And applied to humanitarian work in health or the environment, it would quite literally change the world.

Digital Files After Death, What Happens to Your Digital Legacy?

Have You Completed Your Client’s Digital Estate Plan?

I’m sure you are comfortable that your clients’ estate plans are up to date. But have you reviewed your client’s digital estate plan? What is a digital estate plan? It’s a plan for the disposition of all your clients internet accounts once he or she is deceased

Experts have estimated that the average adult with access to the internet has more than 25 internet accounts! In the past, we kept albums full of snapshots, vinyl records and shoeboxes full of correspondence. Now our photos are all on Flickr and IPhoto, our music is downloaded from ITunes and our correspondence is email via Yahoo or Google.

And probably more important than that, a lot of your clients bank and investment accounts may be entirely online.!

And what happens if your client dies? Who has access to these internet accounts? And if they want those accounts taken off the internet how do they do it? You may discover that it is more difficult than you think to access their accounts or erase them from the internet

The family of Ricky Rash, a 15 year old who committed suicide in 2011, discovered how difficult it was to recover information from their deceased son’s internet account. In an effort to understand why he had taken his own life, they requested but were refused access to his Facebook account. Facebook claimed that according to the Stored Communications Act of 1986 – the federal law that governs the protection of a person’s electronic data – even the account of a minor is protected from access by his parents or anyone else.  Other sites and providers interpret the legislation this way, making access all but impossible.

There are only five states that have taken any steps to help recover the internet data of a deceased person—Indiana, Idaho and Oklahoma legislation covers social media and blogging accounts, while Connecticut and Rhode Island legislation covers only email.

What does this mean for your clients? It is critical that they create a digital estate plan.The listing of internet accounts needs to be more comprehensive than I originally recommended. Information must include:

  • the name of the account
  • the contents of the account
  • the URL address
  • username
  • password
  • instructions for the disposition of the account including the person to oversee such disposition.
Digital planning
Digital planning

There is a whole new industry that has been created to service your clients’ digital estate , a new digital estate planning service. Your clients can create an account and then enter their user names, passwords and wishes for each of their digital assets. They can specify an heir for each account; Legacy Locker will provide heirs with information after the account holder’s death is verified.

There are also online memorial services to celebrate your client’s life. These services enable your clients to create their own memorials before they pass away. Facebook and Twitter also offer these services for family members.

The importance of having a digital estate plan will increase as more and more of our assets (and access to assets) are online. Gradually laws will evolve to give family members access to deceased loved ones’ accounts. It is important to prepare your clients for the disposition of their digital assets now so that family members will not be unpleasantly surprised when they attempt to uncover them.

If you want to explore digital estate planning in more detail feel free to wander around.