Tag: Personal data

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

Dealing with Digital Assets in an Estate

Eleanore

The term “digital assets” is used in different ways by different people. In a broad sense, digital assets include all of the electronic “possessions” an individual may have, including emails, digital photos, videos, tweets, texts, songs and e-books, as well as online account information for websites or programs.

Digital assets have three distinct elements: a digital file or record, the right to use and a method of access. As part of the estate planning process, these elements should be addressed by the client and his or her lawyer to ensure that the executor will have all required information to access and administer the digital assets. Ideally, the client should prepare a memorandum of digital assets to catalogue all digital assets and services. This provides access to such information in a centralized location for the executor. The memorandum should express wishes with respect to how the assets should be handled after death. It is important to maintain tight security over such a list, but also to ensure that it is kept up-to-date and that the executor knows its location.

Executors often have questions on how to administer digital assets, which we address below.

Can access rights be passed on?

The difference between property rights which survive death and contractual rights which often do not survive death can result in a personal representative having a legal right to the files and information stored with a service provider, but having no enforceable right to access that information. Several U.S. states have passed laws providing executors or estate lawyers with powers to access digital assets but no similar laws have been enacted or proposed in Canada.

Access concerns highlight the value in taking appropriate planning steps to pass on access to one’s digital assets to executors or heirs.

When is an asset not an asset?

Some services provide the user with a limited licence to access the content in particular ways. For example, Apple’s iTunes service allows a user to use downloaded content on up to five authorized devices at a time, and allows each device to store content from up to five different accounts. Such licences are personal rights that expire when the user dies and therefore do not form part of the Estate.

While access to content may continue due to storage on a physical device or continued account access via password, there is no further legal right to the use of such content. In many cases, the licensor will have the ability to delete the account and content if it learns of the death of the user.

What is the “Unauthorized Use of Computer” offence?

Executors administering digital assets must also be aware of the Criminal Code offence relating to unauthorized and fraudulent computer use. Specifically, the Code provides that obtaining “any computer service” “fraudulently and without colour of right” is a criminal offence. “Computer service” includes data processing and the storage or retrieval of data. A Quebec court recently interpreted this offence to mean intentionally obtaining a computer service, while knowing that you are not authorized to do so.

It is unlikely that the Crown would pursue charges against a personal representative for accessing a deceased’s online account for bona fide estate purposes, even if such access was technically in violation of the terms of service. In particular, a personal representative who was left passwords and specific instructions from the deceased would have a defensible “colour of right” that should exclude the application of this provision. However, this provision has not been tested in the estate context and a personal representative uncertain about his or her rights to access a particular service is encouraged to seek specific legal advice before doing so.

How does Privacy Legislation apply?

Personal representatives should be aware of their rights to personal information of the deceased under privacy legislation, since privacy legislation may be raised by computer service providers to deny a personal representative access to the account of a deceased. Under the Personal Information Protection Act (British Columbia), the executor is specifically authorized to request personal information about the deceased, and information on how the deceased’s personal information has been used.

I am the executor faced with digital assets. How do I start?

  1. Identify. Ascertain and list all digital assets of the deceased. If there is a memorandum, this should be your starting point.
  2. Gain access to digital devices. Secure any devices and restrict access. Because the physical property and all the rights to it vest in you as the executor, you are within your rights to circumvent passwords and security measures if necessary in order to gain access.
  3. Gain access to digital assets. Where the deceased has left passwords for his or her online accounts, ensure that you can gain access. Where you do not have a username/password, there may be another way to request the information.
  4. Backup. Where possible and appropriate, make local backups of digital assets that may have financial or sentimental value.
  5. Inventory. List all digital assets for the purpose of accounting to beneficiaries.
  6. Digital assets having determinable value. Digital assets having realizable present or future financial value should be secured and their value ascertained for probate and accounting purposes. Determine whether the asset is to be transferred in kind to a beneficiary or if it should be prepared for sale.
  7. Personal and sentimental items. For personal and sentimental digital assets without determinable value, arrange for their transfer to the beneficiaries in accordance with the will or law. If these assets are of a personal nature, they may fall within the Will’s “articles” provisions.
  8. Personal information. Subject to instructions or wishes for dealing with personal information, the executor should protect the privacy of the deceased to the greatest degree possible.
  9. Liabilities. Determine any liabilities relating to digital accounts and pay them together with other estate liabilities.
  10. Close accounts. Attend to the orderly closing of accounts where all useful assets have been recovered and the account is of no further use.

We expect that the administration of digital assets as part of the Estate will continue to evolve as the methods of access, type of information, and value of the assets change over time. It is important that testators and executors ensure their planning and administration keep pace with the evolution.

Creating and curating a digital legacy (abstract)

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Click here to view original web page at Life beyond the timeline: creating and curating a digital legacy

 The internet has steadily become integrated with our everyday lives, and it is scarcely worth remarking that the quotidian footprint we leave is increasingly digital. This being the case, the question of what will happen to our digital legacy when we die is an increasing important one. Digital accounts containing emails, photos, videos, music collections, documents of all kinds, social media content, eBooks and the like, all trace the life we have led, and if they are to be conserved and bequeathed, if family and friends are to benefit from this often highly emotive and evocative desiderata, if history is to be recorded, we need to prepare these accounts and assets for the inevitability of death. A difficulty though, is that the demands of curating such a legacy are formidable, the importance of creating digital archives from personal data contained in online accounts is not well-established in the public arena, and the products and services available to facilitate this are largely inadequate. Future generations and future historians are the poorer for this. In this presentation we will point out some of the difficulties involved in curating and bequeathing a digital legacy, and suggest a partial remediation.

Full article here

When will Digital Death go mainstream in Israel?

When will Digital Death go mainstream in Israel?

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.

Death, Data and the Digital Hereafter

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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.

Your Digital Legacy Can Live On

Your Digital Legacy Can Live On

Eleanore Leave a comment

I read with interest this week that an estimated 11% of people in the UK are leaving their internet passwords in their will so that their loved ones can access their personal data online.

A survey commissioned by cloud computing company Rackspace concluded that more than a quarter of the 2,000 people asked had digital assets worth more than £200. With photographs, films and videos so easily stored online, they have in many cases replaced the hard copy photo album and DVD. When you lose someone, it makes sense that you’d still want to be able to access those assets rather than leaving them online.

By 2020, a third expect to store all their music online, whilst a quarter anticipated keeping all their photos online. In addition, passwords for sites such as Facebook and Flickr are also being included in wills to ensure that personal data can be protected. It’s a sensible idea given how difficult it can be to get hold of these passwords.

Facebook pages can often become tributes to the person, but can also fall victim to spammers or malicious comments, so bequeathing your passwords can allow those left behind to maintain these pages or close them down.

Only the other day, I was shocked to see Facebook suggesting I might want to be friends with someone who is no longer with us – it’s the decent thing to empower relatives to take these pages down if it’s not appropriate that they’re online any more. I hate to be old school about it, but I’m not sure being left an eBook or Flickr account is quite as precious as the original book or a box of old photos owned by someone you loved!

What are your thoughts?