What Happens to Your Online Life After You Die? The Hereafter Institute Helps Plan "Second Death"

What Happens to Your Online Life After You Die? The Hereafter Institute Helps Plan “Second Death”

What Happens to Your Online Life After You Die? The Hereafter Institute Helps Plan “Second Death”

Click here to view original web page at What Happens to Your Online Life After You Die? The Hereafter Institute Helps Plan “Second Death”

What Happens to Your Online Life After You Die? The Hereafter Institute Helps Plan
Courtesy Gabriel Barcia-Colombo

“Today we die twice,” is the Hereafter Institute’s tagline.

First we die physically, and then digitally. The Institute, the invention of L.A.-born, New York–based artist Gabriel Barcia-Colombo, exists to help people plan for their second death. Barcia-Colombo, currently a fellow in LACMA’s Art and Technology lab, has been developing his institute with the help of the lab’s resources and, this past weekend, offered the first official consultations to members of the public. Those of us who arrived for consultations would, we were told, learn about our options for a digital afterlife.

Barcia-Colombo is not alone in thinking about where data goes after death. Designers John Romano and Evan Carroll in 2010 wrote a book, Your Digital Afterlife, in which they explained to readers what a digital afterlife even was and how to prepare their accounts for death. Digital estate planning firms already exist but, as art, the Hereafter Institute can afford to be a bit sexier in its mood than existing firms, more about the futuristic potentials of virtual afterlife than the nitty-gritty details.

Gabriel Barcia-Colombo
Gabriel Barcia-Colombo

This past weekend, the lobby of LACMA’s Bing Auditorium served as the Hereafter Institute’s lobby. A desk in the back corner featured its logo, a bold, blue letter H with a gradient infinity sign snaking around its posts. Two women with white lab coats greeted me when I arrived, telling me that Alex would be my consultant. The consultants, all L.A. actors, worked half-day shifts, three of them taking appointments at a time. Cheerful and blond, Alex led me to the Japanese Pavilion, where we would start our session in the minimal conference room, with its drab sofas and big windows. Julia Irwin, a technician, sat at a desk in the corner; a big screen angled across the opposite corner. Alex explained, while referring to images on that screen, that I had three general afterlife options: Continuation, in which my digital presence continues after I die; Deletion, in which I hire the Institute to wipe away my digital remains; and Memorialization, in which I create some sort of memorial to my data.

In 2014, a guy named Nathan took to Reddit to complain that his dead girlfriend had continued to tag herself in photos and send him Facebook messages. The internet ate his story up, perhaps because it was a new kind of nightmare — the social media accounts of the dead taking on lives of their own. But Alex suggested to me that the Hereafter Institute could, potentially, help people create an avatar to message loved ones posthumously. It would be well-planned rather than creepy. To get started on the continuation path, Alex guided me through setting up a “legacy contact” for my Facebook account in case something happens to me, a feature Facebook already provides. Later, I would stand on a slowly spinning white disk in the middle of the room while Julia, the technician, scanned my body so that my digital likeness could possibly be preserved for posterity. We never got into how this avatar would function, nor how you could actually delete or partially delete your online presence, which is what I, as a potential client, wanted to know. I also wanted to know how much it might cost but, again, the Hereafter Institute is in the business of possibilities over logistics.

A view of the locket with video footage
A view of the locket with video footage

Two necklaces displayed against the back wall were memorial options, Alex explained. They looked like oversized keyless car remotes, screens at the center playing soundless home videos. The videos play randomly, and the necklaces store about an hour of footage each. An older man and a kid appeared on one screen, a young guy talking to the camera on the other. I tried to picture someone wearing this clunky, techy jewelry. What kind of conversations would start?

“Hey, what’s that you’re wearing?”
“It’s just, well, my brother died last month, and he left this behind for us. There are tons of videos of him on here.”
“What’s playing now?”
“Oh, looks like he’s saying stuff in mom’s kitchen.”
“What’s he saying?”
“No idea. These things don’t come with sound.”

Alex assured me another memorialization option did incorporate sound, and she soon led me from the Japanese Pavilion down past Alexander Calder’s fountain to the Art and Tech Lab. There, she showed me a tall, sleek black record player, perfect for some corporate guy with an aversion to a vintage aesthetic. The player’s base functioned as a screen, playing a deceased person’s Facebook timeline, one post at a time. Posts from a women named Stormy, who had a sense of humor, were playing when we arrived.

The sounds coming from the player are based on an algorithm and meant to correspond with the text — melancholic sounds for melancholic status updates, upbeat ones for upbeat updates. “Interesting how homogenous it sounds,” I commented. “It’s peaceful,” Alex corrected. I also wondered about the aesthetic. Were there other memorial models, or did everyone have to go with corporate sleekness? Barcia-Colombo, the Institute’s artist-founder, was there in the lab to answer this. He explained that this prototype was meant more as a public memorial, not a personal one. He had put out a call on Facebook, and people had volunteered their deceased family members’ profiles, so the updates I was seeing were from real individuals. This was about opening up conversations about death, Barcia-Colombo said, since we often avoid the issue.

A sneak peek at a new form of data monument celebrating the lives of those who have passed away but still exist on social media; vinyl records that are encoded with data through audio tones.
A sneak peek at a new form of data monument celebrating the lives of those who have passed away but still exist on social media; vinyl records that are encoded with data through audio tones.

Then I was putting on virtual reality headgear to briefly visit a virtual, marble lobby that looked like a mausoleum. An elevator door would open, briefly giving me a glimpse into a deceased person’s life. Barcia-Colombo’s grandfather, Spanish poet Jose Rubia Barcia, was one of the individuals, shown from the back seated at a desk. Clearly, the grandfather had no hand in this, and Barcia-Colombo acknowledged he had crafted this virtual space for the sake of his own remembering. But, hypothetically, you could do it for yourself, too; it would be the VR equivalent of a memoir. Or perhaps, eventually, you could go further. Neuroscientist Michael Graziano wrote recently in The Atlantic about the possibility of living after death in a simulated video-game universe. He suggested that brain scan technology probably could, a ways down the road, be used to preserve someone’s consciousness digitally, though we currently have no scanning equipment capable of capturing all the connections between the billions of neurons in human brains.

There is, then, the question of why you would want to keep living indefinitely as a digital simulacrum. Alex had surveyed me at the beginning of our session, asking if it mattered to me that my politics, creativity and personality be remembered. Those seemed like concerns that happily ended with death, when there was no further need to wonder how I came across or whether people liked me. Who would benefit if I kept dictating how I was perceived after dying?

HereafterLife: A VR experience where you can visit those that have passed in a virtual afterlife
HereafterLife: A VR experience where you can visit those that have passed in a virtual afterlife

My consultation ended in LACMA’s Brown Auditorium, where I sat alone in the front row and experienced a condensed version of my own funeral. “Catherine was beloved,” said a youngish emcee in a suit. He was at the podium, a screen behind him playing quotes from my social media platforms, thankfully almost all of them work-related. “Catherine loved art and culture, but people were most important to her,” said the emcee, an observation he backed up by reading my “favorite quote,” a line from my Facebook profile about how much better friends are than success. Then the screen went glitchy and the emcee slid across the stage, giving a panicked half-minute monologue about lack of privacy (“everything we do leaves a trace”). When the glitches cleared up, I saw a clunky, 3-D modeled version of myself awkwardly frolicking down a white plank that led into clouds. Quickly, Alex ushered me out the back door and thanked me for coming.

I imagined what I would say if I wrote a Yelp review: “The Hereafter Institute has some good ideas, but they don’t seem to be clear yet on what they’re actually offering clients. Are the record-player memorials just for public display or can they be individualized? How can I make my own virtual reality memoir? Also, the guy at the end seemed really freaked out about digital culture. Did he go off message, or does the Hereafter Institute think nervous clients will be more likely to enlist its services? I left feeling confused.”

Of course, disconnects and messiness are more compelling in performance art than in the service industry. As an art project, Barcia-Colombo’s Hereafter Institute seems mostly to underscore how little we actually know about how our data persists posthumously and how we should feel about it. Should we be concerned? Should we take control? Should we get off Facebook before someone bases a eulogy on our timelines? The latter option is tempting.

The Hereafter Institute is still in its early stages. Future consultations or services will likely be announced on its website.

Website that helps you plan for death finds success with millennials

Website that helps you plan for death finds success with millennials

Website that helps you plan for death finds success with millennials

Click here to view original web page at Website that helps you plan for death finds success with millennials

Liz Eddy has lost track of how many times she’s told the story that led her to co-found Lantern, a website that helps people tackle the complex logistics of losing someone they love and also plan for their own deaths.

That story starts with a phone call on a Saturday morning from a nursing home with news that Eddy’s grandmother had died. Two police officers and a nurse greeted Eddy in the room where her grandmother’s body lay.

“They looked at me and said, ‘What do you want to do?'” recalls Eddy, who was 27 at the time. “I had no idea what to turn to … and really was just thrown into a rapid Google search where I typed in what do you do when someone dies?”

“I was just thrown into a rapid Google search where I typed in what do you do when someone dies?”

Eddy, who lost her father as a child, anticipated this moment. Her grandmother, who was frail, had done some pre-planning. She’d written a will, completed an advanced directive for her medical care, and told Eddy where she kept important paperwork and belongings.

But Eddy quickly learned that there’d been oversights, including how she might close certain accounts, stop auto-refill prescriptions, and find online passwords. Eddy figured she’d rely on a comprehensive online resource that could walk her through what to do but found none. Instead, she embarked on a “scavenger hunt of websites” for answers.

“I fully expected to find something like Lantern,” she says.

In the midst of coping with her grief and trying to settle her grandmother’s affairs, Eddy walked in the door of her best friend Alyssa Ruderman’s home, and said, “We’ve got to do something about death.”

The pair launched Lantern last fall with $890,000 in pre-seed funding. The website offers free checklists for users who need to plan a funeral, help dealing with logistics that follow a funeral, or assistance sorting out their last wishes in advance of their own death. The site has thousands of users, and to Eddy’s surprise, 40 percent of them are 35 and younger.

WATCH: How to plan for your digital death — Clarification Please

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Lantern’s appeal to millennials speaks to a number of trends. They may help older parents plan for what happens when they die and then decide to make similar arrangements for themselves. Accustomed to having everything in their lives optimized or organized by a digital tool, the 35-and-under crowd may view online end-of-life planning as a helpful service like any other they use.

In general, talking about dying seems less taboo to many millennials. They encounter the “positive death” movement online, which aims to make conversations about death normal and routine. But millennials also live in a world that seems beset by crisis, whether that’s mass shootings, climate change, or coronavirus. Contemplating what the end looks like is part of being alive.

Anita Hannig, an associate professor of anthropology at Brandeis University who studies death and dying, says people — not just millennials — increasingly want to express their unique selves in death as in life.

The challenge is getting people comfortable enough to consider what that looks like. Eddy and Ruderman have designed Lantern to sound like a compassionate friend who knowingly takes your hand. The site isn’t morbid but instead offers practical information about the choices we can make before we die, like hiring a death doula and how to write a will. Users can compare different burial options, learn how to select life insurance, and explore how they want to be remembered online.

“A lot of people still think that if you’re talking about death too much, there’s an eerie way you’re bringing it about,” Hannig says. “In some ways, having a website like this [is] making death so much more manageable so that you can focus on the actual process of death and dying when it happens.”

Viana McFarland, a 25-year-old New Yorker, discovered Lantern after an employer-sponsored financial planning workshop prompted her to think about what might happen to her belongings and modest savings after she died. After searching Reddit and Google for resources, she found Lantern.

“There were small things I didn’t think about,” McFarland says.

That included the specifics of her burial. McFarland learned that she could let her body decompose in a “mushroom suit,” which hastens the breakdown of a corpse using mushroom spores and other microorganisms. She explored how to donate organs and leave money to the ACLU and Planned Parenthood. Most of all, McFarland wanted to spare her loved ones stress, confusion, and conflict. The time she spent on Lantern felt useful and productive.

“I guess younger people, with more resources at our hands, might become informed sooner or in a different way than our parents and grandparents were,” says McFarland.

More than three dozen articles on Lantern offer advice and insight on common questions. Its checklist offers a step-by-step guide to managing your last wishes. Tasks include making a funeral financial plan, safely storing financial information so it can be accessed by a loved one, and writing a last will and testament.

Website that helps you plan for death finds success with millennials

Lantern is also sentimental. The checklist prompts users to reflect on their legacy, asking about the three best decisions they ever made, what advice they’d give to their younger selves, and what they’d want their grandchildren to know about them.

“These questions were really developed because we started to realize that people don’t ask these questions of their loved ones, and it’s often the thing you think about when they’re gone,” says Eddy, who personally longs to know stories from her father’s life.

While it’s crucial to record the practical and sentimental information, Lantern must also deliver on keeping it secure. The site uses encryption and currently doesn’t collect information it doesn’t feel equipped to protect, such as passwords, wills, and Social Security numbers.

Instead, its business model is based on referring users to services that specialize in certain products, and which Eddy and Ruderman have personally vetted. For estate planning, Lantern recommends Legal Zoom. To help loved ones close online accounts, it suggests the password manager 1Password. Lantern can receive a referral fee when its customers sign up for such services. Eddy and Ruderman are also exploring pitching Lantern to organizations, like life insurance companies and hospitals, whose clients need the information the site has to offer. They’re making the same case to human resources departments who could use Lantern as a benefit for employees who, like McFarland, don’t know how to start end-of-life planning.

Though Lantern will probably offer a premium subscription to users in the future, Eddy and Ruderman are adamant that its basic how-to content and checklists will never be paywalled.

“We don’t think people should not have access to this information because they do not have means,” says Eddy.

The company can take that stand because it’s a public benefit corporation, which means it plans to pursue a mission-driven approach while also seeking a return for investors.

“Our vision is to be the central resource that any one person uses to navigate their life before and after a death.”

Nancy Lublin, an entrepreneur who is the founder and CEO of Crisis Text Line and the former CEO of DoSomething.org, made an angel investment in Lantern. Lublin knows Eddy and Ruderman from their previous roles at Crisis Text Line and DoSomething.org, respectively.

She said in an email that Lantern is poised to serve a “huge untapped market. Millennials, in particular, are bound to find Lantern appealing.

“How the heck are people going to deal when their parents and grandparents (fyi: enormous boomer generations) pass away?” wrote Lublin, noting that millennials use digital tools to find everything from roommates to lovers to marijuana. Of course they’d want something similar to help them manage death.

Eddy and Ruderman are aiming to become the first thing anyone turns to when it’s time to grieve a loved one or plan for the end of their own life.

“Our vision is — and always will be — to be the central resource that any one person uses to navigate their life before and after a death,” says Ruderman. “That is our North Star.”

Eddy is buoyed by the possibility that she’s helping others avoid what she experienced following her grandmother’s death: “You don’t have to be forced to pick the first thing you see on Google,” she says.

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La morte ai tempi del web

Death and Digital Content: Protecting Digital Assets After The Death Of A User

Death and Digital Content: Protecting Digital Assets After The Death Of A User

Click here to view original web page at Death and Digital Content: Protecting Digital Assets After The Death Of A User

In 2016, the New York Legislature enacted a version of the Uniform Law Commission’s Revised Uniform Fiduciary Access to Digital Assets Act in Article 13-A (“Article 13-A”) of the Estates, Powers and Trusts Law (“EPTL”). As illustrated by two recently decided New York Surrogate Court cases, and as previously discussed on this blog (You’ve Got (E-)Mail! Can Your Survivors Access It After Your Death? and AN UPDATE ON A FIDUCIARY’S ACCESS TO THE DIGITAL RECORDS OF A DECEDENT), the Courts have created a distinction between the disclosure of a decedent’s catalogue and that of a decedent’s digital content (Matter of Serrano54 NYS3d 64 [2017]; Matter of White, 10/3/2017 NYLJ p. 25, col. 1). The catalogue of electronic communications includes the name of the sender, the e-mail address of the sender, and the time and date of the communication. A decedent’s digital content includes the subject line and text of e-mail messages. The disclosure of a decedent’s non-content information to a fiduciary is permitted, if not mandated, by Article 13-A of the EPTL (see Serranosupra).

On the other hand, with respect to a service provider’s obligation to disclose the “content” of electronic communications, the determinative factor appears to be whether the deceased user gave an affirmative direction to disclose the content. The law first looks to whether the user used an online tool to direct disclosure of the content. Absent online direction, the law then looks to a deceased user’s will or other written instrument (see Wills, Trusts & Estates: Plain & Simple – What happens to your Social Media and other digital life when you die?). These decisions demonstrate the emergence of digital assets as the impetus of disputes in estate litigation matters and the importance of properly planning for same.

More recently, Surrogate Mella of New York County, addressed the interplay of Article 13-A of the EPTL and a decedent’s digital images. In Matter of Swezey, 2019 NYLJ LEXIS 135 (Sur Ct, New York County 2019), the executor of the decedent’s estate commenced an SCPA 2103 proceeding for the turnover of photographs stored in the decedent’s iTunes or iCloud account from Apple Inc. (“Apple”). The decedent’s will bequeathed his personal property and residuary estate to his surviving spouse, the executor of the will. However, the decedent did not use an online tool to provide direction for his digital assets, nor did his will specifically provide for the disposition of those assets. Apple informed the executor that a court order would be required to disclose the electronic data from the Apple ID. Accordingly, petitioner turned to the Court for an order directing Apple to disclose the digital data.

In analyzing the determining factors, the Court noted that “no provision in decedent’s will expressly authorizes the executor to access decedent’s digital assets and petitioner points to no other document authorizing such access. Nor does petitioner provide proof of decedent’s use of any online tool granting his personal representative access to his digital property” (id.). Nevertheless, the Court ordered Apple to disclose the photographs stored in the decedent’s Apple account. In reaching her decision, the Surrogate distinguished electronic communications from other digital assets, such as photographs, pointing out that the disclosure of other digital assets does not require proof of a user’s consent or a court order.

With regard to a fiduciary’s duties, the Surrogate further noted:

[i]n this age, a decedent’s property – which is defined as anything that may be the subject of ownership, real or personal – must include assets kept in a digital form in cyberspace. The New York legislature enacted Article 13-A of the Estates, Powers and Trusts Law to apply traditional governing fiduciaries to this new type of property and authorize fiduciaries to gain access to, manage, distribute and copy or delete digital assets. Fiduciaries are now charged with the same duty of care, loyalty and confidentially to marshal and protect a decedent’s digital assets as they do to manage a decedent’s tangibles.

The Swezey decision reflects the importance of taking measures at the planning stage to ensure a fiduciary of an estate will be permitted access to a decedent’s digital assets. The decision is also significant because it makes clear that a decedent’s digital images, as opposed to electronic communications, do not require proof of a deceased user’s consent before his or her fiduciary may access them.

I Needed to Save My Mother’s Memories. I Hacked Her Phone.

I Needed to Save My Mother’s Memories. I Hacked Her Phone.

I Needed to Save My Mother’s Memories. I Hacked Her Phone.

Click here to view original web page at I Needed to Save My Mother’s Memories. I Hacked Her Phone.

Claire Merchlinsky

Several days after my mother died in a car accident, my two sisters and I sat together in her apartment, stunned and overwhelmed. High on our horrible to-do list — along with retrieving her smashed vehicle from the tow lot, making burial plans and meeting with the rabbi — was this: getting into her cellphone.

Everything we needed to get her affairs in order was on her phone. Her contacts would tell us who to reach out to about the memorial service. Her email would tell us whether she had made plans we needed to cancel. Her finance apps would tell us whether she had been paying bills electronically. And there would be personal information, too. Her texts to family and friends. Her notepad. Her photos. The e-book she had been reading on the flight home in the hours before the accident as she left the Tulsa International Airport.

Luckily, Mom had given me the passcode to her phone only a month before. When we felt ready, I turned on her iPhone in its pink plastic case and typed in the code.

Nothing.

I typed in the code a second time. Again, nothing. My sisters and I looked at one another. A tightness gripped my stomach as I realized that the code Mom had given me couldn’t possibly work: That code had contained four digits, and her phone was asking for six.

Six digits means one million possible combinations, and her phone would give us only 10 tries before Apple would erase all of her data. Her old passcode had been the last four digits of the phone number at our childhood home, which ended in a zero. We decided to add two zeros to the end and were so confident that we knew how Mom’s brain worked that I paused dramatically before I tapped in the final zero, certain it would work. It did not.

[As technology advances, will it continue to blur the lines between public and private? Sign up for Charlie Warzel’s limited-run newsletter to explore what’s at stake and what you can do about it.]

After that failure, my sisters and I treated every one of the remaining tries like some sort of nuclear access code. We made a few more attempts, none successful. With each failure, the phone made us wait longer between tries. Eventually we decided it was best to stop and find a different way in — the risk of permanently erasing everything was too great.

As a historian and biographer, I’ve made a career of reconstructing lives. To do that, you need information. The people I study and write about are entrepreneurs, innovators, famous and wealthy individuals. Their lives have been well documented in countless ways, including television interviews, newspaper and magazine articles, congressional testimony, patent records and the corporate archives of companies they founded. It’s relatively easy to reconstruct those lives, particularly if there are still friends and colleagues to help fill in the blanks.

Mom left no public record aside from a letter to the editor published in The Tulsa World. Instead, she had a dusty purple plastic bin she labeled “Memorabilia” with a Magic Marker. Inside were a prom program, a love letter from a boyfriend we had never heard of and hundreds of drawings, photos and notes from her grandchildren or us sisters as children. She had the photo albums she had made when we were little. A safe deposit box held her citizenship papers and other legal documents.

Nearly anything from the past 20 years existed only online, locked away behind passwords and firewalls. Notwithstanding the cards she made by gluing New Yorker cartoons onto cardstock, her written communications essentially stopped in the early 2000s, when she got an email account. She was a great texter, pouncing to be the first to respond in any group and embracing emojis with the passion of a preteenager. Her social media posts were politically passionate and at times head-scratchingly random.

I valued these public things, of course, but I also wanted more. We document our lives in two ways, one intended and one not. There are the emails we send, the photos we post and the comments we debate and wordsmith before hitting Return. And then there is the inadvertent record: the enraged first drafts, the unflattering selfies, the record of purchases at Amazon or Netflix, the digital sticky notes we had not meant to keep.

We work hard to curate the public self and rarely think about the shadow self. I knew from my own work, however, that off-the-cuff notes, old receipts, call logs and calendar entries can serve as proxies for feelings. A run of doctor’s appointments, a glut of calls to the same phone number that never picks up, the purchase of five types of acne cream or a self-help book — these are clues. When we are alive and artificial intelligence assembles these clues to hazard an eerily accurate prediction about our interests and future desires, we are horrified. But for a historian looking at the life of someone who has died, the same clues can lead to understanding.

As a daughter, my heart broke at the realization that digital records, along with the stories from those of us who loved Mom, were going to be the best way to be with her again, to learn from her again or to laugh again at her stupid jokes. But as a historian, my mind raced. If the only way to preserve her memories was to put together the pieces of her digital life, then we had to hack into her online accounts.

After a frantic hunt, my middle sister found a small pocket calendar in Mom’s desk. The back pages were filled with handwritten login IDs and passwords. I patted myself on the back for having insisted Mom record her passwords, and we sisters rejoiced … for about five minutes. At site after site, login page after login page, every attempt failed.

The only login and password combination that worked was for her Apple iCloud account, but she had protected it with two-factor authentication. We could see that her phone was receiving texts — texts from Apple containing the codes needed to get into her account — but we couldn’t unlock the phone, so we couldn’t see the code. I called a few high-powered techies I know from working at Stanford and living in Silicon Valley, but none of them could help. It seemed we would be locked out of everything.

Eventually I found a savior — a young employee at an Apple Store. I explained to him that I had Mom’s login ID (an email address) and the password for her Apple account, but I couldn’t override the two-factor authentication. He asked me to enter the login and password, and he grimaced when her locked phone lit up with the authentication code we could not see. Then his expression changed. “Let’s try her SIM card,” he said.

A phone’s SIM card is no bigger than the fingernail on your pinkie finger, but it is of vital importance. It gives your phone its unique identity, making it possible to associate the physical device with a specific mobile carrier and phone number. You can pop the card out of your phone by inserting a paper clip in the tiny hole you might have noticed on the side of your phone. Moving a SIM card from one phone to another is how most people move their phone number when they upgrade their devices.

The employee ejected the SIM card from Mom’s phone and put it in his own. His phone now had her phone number. We logged into Mom’s iCloud account again. This time we clicked the link that said we had not received the original two-factor passcode sent to the phone as a trusted device. We requested another be sent to her phone number. An instant later, his phone buzzed with the code. “O.K. to input this?” he asked. My heart pounded at the thought of this young stranger being with me when I peeked into Mom’s hidden digital life for the first time, but I nodded approval. He typed the code on the site.

Boom: We could see her Apple mail, her memos, her bookmarks and her photos. We had recovered a key to unlock her digital world.

At home, I put Mom’s SIM card into my husband’s phone so that it could receive texts sent to her number. Now, with her login ID and control over her phone number, I could impersonate her. At every website, I said that I forgot her password. The website tried to confirm her identity by texting a code to Mom’s registered phone number — and the code would go straight to my husband’s phone. Once I was logged in, I could then change both the password and the trusted phone number that would thereafter be associated with the account. Every time a page opened up with her name at the top, I felt a mix of elation and nausea.

It took hours, but I gained control of her email accounts, her Amazon account, her cable provider and the sites for her credit cards. We never did figure out the passcode to her phone, which means I will most likely never see the iMessages or other encrypted information. Otherwise, I now have access to almost all of her digital history.

After all that work to crack Mom’s accounts, I haven’t looked at them. It has been six months, but it’s still too soon. Looking through her digital life will mean remembering her before she was gone, back when I was a daughter with the luxury of being annoyed by her calls or texts, back before she or I understood in the visceral, never-going-back way I do now that it was all going to end. I haven’t even listened to the voice mail messages from her that I still have on my phone. I do know they almost all begin in the same way: with a pause and then her voice saying, “It’s just me.”

Leslie Berlin, a historian at Stanford, is the author, most recently, of “Troublemakers: Silicon Valley’s Coming of Age.”

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What Happens to My Digital Assets on Death or Incapacity?

What Happens to My Digital Assets on Death or Incapacity?

What Happens to My Digital Assets on Death or Incapacity?

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A recent New York case, Estate of Swezey (NYLJ, 1/17/19 at pp. 23, col. 3) highlights the confusion in the laws of many states regarding the administration and distribution of digital assets at a decedent’s death. In this case, decedent’s executor asked Apple to turn over decedent’s photographs stored in his iTunes and iCloud account. No provision in decedent’s Will specifically authorized the executor to access decedent’s digital account. The Court relied on the relatively new section 13-A in the New York Estates, Powers and Trusts Law (“EPTL”), Administration of Digital Assets which provides for different procedures for the disclosure of electronic communications, in contrast to the digital assets. To disclose electronic communication specific user consent is required or a specific court order for an identifiable reason. Other digital assets, such as the photographs requested by decedent’s Executor, are treated like other assets which belonged to decedent at death and are within the purview of the Executor’s general responsibility. The Swezey Executor was trying to access decedent’s photographs. The Court concluded that Apple was required to disclose those photographs.

The Uniform Law Commission promulgated the Uniform Fiduciary Access to Digital Assets Act (the “Original Act”) in 2014. In 2015 the Uniform Law Commission further refined their attempt and came up with a Revised Uniform Fiduciary Access to Digital Assets Act (the “Revised Act”).

The Original Act treated digital assets like traditional assets. The owners could decide what would happen to them and the fiduciaries could have control of them when the owner died or became incapacitated. After a person died, his or her executor would have the same right to access the deceased person’s accounts as the deceased person had during life. And if the executor did not have needed login or password information, he or she could ask the company for access and the company would have to comply. This approach would have given executors the access they need to wrap up the estate – including passing on photos, archiving emails, deleting or modifying social media accounts, paying final bills through bill pay, and canceling subscriptions.

This Original Act met with strong opposition from technology companies as well as from privacy advocacy groups such as the ACLU. They argued that providing executors the authority to access all of a deceased person’s digital assets would invade the deceased person’s personal privacy in ways that they would not have imagined or wanted. Additionally, technology companies argued that elements of the Original Act were contrary to federal privacy laws and state and federal computer fraud laws, forcing companies to violate one law while complying with another.

The Revised Act addressed many of these concerns and greatly reduced the authority of an executor to access digital assets. It also prioritized the document that would control some of these issues.Here are some of the key changes:

  • An executor does not has authority over the content of electronic communications (private email, tweets, chats), unless the deceased person explicitly consented to disclosure.
  • An executor can get access to other types of digital assets, such as photographs or an eBay or PayPal account.
  • The first place to look for authority to disclose digital assets is an “online tool,” separate from terms of service, through which users during their lifetimes can determine the extent to which their digital assets are revealed to third parties, including fiduciaries. (On Facebook, for example, the online tool is known as Facebook Legacy Contact.) If a user has provided direction through the online tool, it will supersede conflicting directives, including those in a Will.
  • Next look to the decedent’s or incapacitated person’s Will, trust or power of attorney to see what explicit instructions and authority, if any, are given.
  • If a fiduciary does not have explicit permission through a Will, trust, or power of attorney, look to the terms-of–service agreements to see the rules regarding access to a deceased or incapacitated person’s account.
  • If the terms of service do not cover the issue, the Revised Act’s default rules apply. Those default rules recognize multiple types of digital assets. For certain digital assets, like virtual currency, the Revised Act gives fiduciaries unrestricted access. For electronic communications, however, the statute does not provide fiduciaries access; instead, it allows them to access a “catalog” of communications consisting of metadata such as the addresses of the sender and recipient, as well as the date and the time the message was received.
  • Fiduciaries may request court orders if necessary. In general, access is only granted to assets that are “reasonably necessary” for wrapping up the estate.
  • Custodians may not provide access to deleted or joint accounts.

The Revised Act has been adopted by a majority of states in one form or another, including New York as evidenced by the enactment of Article 13-A in the EPTL, Administration of Digital Assets. However, as an individual, to be most certain you achieve the results you want, it is best you decide what you want to happen to your digital assets and on line presence if you are incapacitated or dead and have your power of attorney, Will or Revocable Trust reflect these wishes. It is a good idea to catalog your on line presence. Leave specific instructions about how to access your accounts. Include websites or devices needed, as well as usernames and passwords. Tell your executor or attorney in fact what to do with each account. Do you want your stored photos to be shared with family, your twitter account deleted, your blog to be archived and saved? Be as clear and thorough as possible. Why allow someone else to decide? Do it yourself with the help of your estate planning professional.