Digital Afterlife: Managing and Bequeathing Your Online Legacy
Facebook photos, Instagram feeds, iTunes music and movies, Flickr albums, Gmail messages: how will you pass on your digital assets to your heirs? And can they even inherit them in the first place?
When you think of wills, you often consider property, jewelry, cars and cash in the bank. But increasingly, your intangible digital assets should be taken into consideration as well. And thanks to how quickly we are accumulating them, they’re getting more legal attention too.
We’re rapidly collecting a cache of social media and digital libraries — a Facebook page containing years of posts and a treasured photo album on Flickr to an iTunes library of music, books and apps and Gmail accounts with important documents. But who gets this when we pass away? Surprisingly, there’s little legal framework governing how this this material is distributed, which can often have significant personal and monetary ramifications.
“Virtually no law regulates what happens to a person’s online existence after his or her death,” the University of Illinois law professor Jason Mazzone wrote in a report titled “Facebook’s Afterlife.” “This is true even though individuals have privacy and copyright interests in materials they post to social networking sites.”
The professor argues federal agencies should be responsible for safeguarding digital assets in a manner similar to banks, and step in to properly bequeath a deceased person’s assets. And, Mazzone asserts the U.S. government should take the lead in regulating social-networking sites, by giving people the power to choose what happens to their digital information in the event of their death.
A uniform policy is needed, Mazzone says, since social networking sites currently set their own individual policies. In addition, state initiatives may not have the broad authority to govern the scale of social media platforms, and people’s individual and collective interests need protection.
While Mazzone and others push for legal clarity, the issue continues to press as people’s digital assets accumulate. And who gets these assets when we pass is still murky at best.
States Respond
States are taking notice of this legal gray area. Last year, Oklahoma passed a law requiring social networks like Facebook to grant access to friends and family of the deceased, and Nebraska and Oregon are reportedly considering similar legislation. But these initiatives, and others like them, don’t carry enough weight to fully address the wide range of issues upon death.
Mazzone said it would be very difficult for any particular state to set up a legal framework to adequately regulate Facebook, which not only operates all across the U.S., but also all over the world. “We have to turn to the federal government,” he says, pointing to the lack of clarity, and to ensure an effective and uniform law.
This is Your Stuff
While advocates like Mazzone urge a federal response, the public is playing catch-up. According to a survey by online legal service Rocket Lawyer, nearly two-in-three people say they don’t know what will happen to their digital assets when they die.
How will your content be transferred to your heirs? What if social media, which often locks the data, refuses to release it to friends and family? Part of the answer may lie in increasing regulation, but in the event you can’t, or don’t want, to wait, there are a few things you can do to ensure it is handled the way you’d like.
Your will handles the distribution of your financial assets and you likely won’t need a separate written document for online monetary access; but non-financial digital assets are a different story, and there are options to consider — from simply willing passwords to heirs to more firmly weaving your wishes in the fabric of your will.
Inheriting Passwords
More than ten percent of British citizens say they included passwords in their wills or planned to do so, ensuring their digital inheritances would be taken care of.
The success of Apple’s iTunes and Amazon’s Kindle, as well as the ubiquitous nature of smartphones and tablets, means people can collect vast amounts of media without ever leaving their seats. These collections are, in some cases, a considerable asset.
A study, commissioned by computing host Rackspace, found more than half of U.K. citizens held “treasured possessions” in the form of digital media, for an estimated digital inheritance of more than $3 billion in the form of books, music, movies, shows and photos stored online.
As people rely more on digital devices to save and share personal data and indulge their listening, reading and viewing tastes, it is likely future descendants will inherit passwords, or even a digital estate plan, upon your death.
Digital Estate Plan
A digital estate plan, which lays out your digital assets and includes online banking and brokerage account information, purchasing and download destinations like Amazon, iTunes, Netflix and social media like Facebook, Flickr and Twitter, can provide an extra measure of security that your directions will be carried out. When you consider that Facebook alone supports over 300 million photo uploads a month, and think about your own digital life — whether it is stored on a device or in the cloud — you can get a clearer picture of what your own digital assets include.
If you’ve never considered your digital assets, the first step is to take an inventory. Your digital inventory could include Facebook, Twitter, LinkedIn, blogs and websites you own, e-mail accounts, online retail accounts and apps from stores like iTunes, eBay and Amazon, music sites like Pandora, photo-sharing sites like Flickr and YouTube, airline frequent flier accounts, data storage repositories like Google Docs, and other online accounts of value.
Create these account lists and their passwords, and update them when you change a password, close or open a digital account, or at least once a year.
Next, find a safe place to store this highly-confidential information. One option is to store the lists in a safety deposit box at your bank. Or you may want to put them on a secure site like those found at Digital Beyond, an online service list, which encrypts and stores your account information and passwords in one place.
Alternately, you can give the lists to a trusted person like your spouse, child, friend or someone you designate as a digital executor.
A digital executor is the person you pick to carry out your digital estate plan upon your death, ensuring that your end-of-life requests are met. The role, which should also be given power over your digital accounts, should be named in your will, so he or she can help ensure your online accounts are handled the way you would like.
So with your digital asset list in hand, create a to-do list outlining how you want them handled and give these instructions to the digital executor. Some ideas you may want to consider include whether you want an account deactivated or to remain online. In addition, you can decide if you want to leave a final post, or if you want prints of your Flickr photos or a series of online books left to your family members.
Whatever you decide to do, be sure your plan provides specific instructions for your digital executor about any content you want to be posted online upon your death, as well as how and when it should be posted. But, as Mazzone says, these wishes can come in conflict with the terms of service on digital media accounts, which can take precedent over state laws.
Who Has Final Say on Digital Assets?
Despite these efforts, your final wishes may run into complications, since your digital assets are stored on different sites, operated by separate large corporations with varying policies.
In general, Facebook won’t grant access to an account other than the account holder or possibly your digital executor, if you’ve given him or her permission to enter your username and password. Currently, Facebook outlines two procedures in the event of an account holder’s death. Either the social network can “memorialize” a profile, so friends and family can still see it and post on the wall, but can’t log into the account or find the deceased in a search. Or, it can deactivate the profile at the request of the family.
And, should family members informally take over a deceased person’s page without notifying the site of the passing — even to offer a safe and comforting space to share and remember — this may technically violate Facebook’s terms.
In one way, Facebook’s refusal to turn over information seems insensitive, but the social network claims it is protecting users by refusing to release sensitive information without prior permission. These profiles often contain personal details, which can inform or comfort loved ones, but also complicate the issue of privacy. However, Facebook will honor requests from friends and relatives to remove a profile. But flat-out gaining access after a death is not permitted.
Karen Williams of Nebraska found that out the hard way when her son died in a motorcycle crash in 2005. Longing to share his memory and know everything about her son’s life, she asked Facebook for his profile password, and was denied. Williams described the response as “heartbreaking,” saying perusing the page would have helped her with her grief. After filing a lawsuit and the ensuring two-year legal battle, Facebook granted her 10 months of access before removing her son’s page altogether.
The story illustrates a couple specific challenges in resolving the situation — would her son want her to have access to his Facebook page or would he want it protected from intimate viewing, even a parent? And, in the absence of clear direction in this regard, who should decide these questions? Just like the serious nature of death itself, questions relating to digital assets may seem simple at first, but upon deeper digging, they are increasingly complex.
As far as the other digital heavyweights are concerned, their policies vary and, as is true in many legal matters, the devil is in the details.
Gaining Access to Loved One’s Accounts
Twitter provides information about handling the account of a deceased user, but the process isn’t simple either. You’ll need to fax over copies of the death certificate and government-issued identification, like a driver’s license, along with a signed, notarized statement and either a link to an online obituary or a copy of the obituary from a local paper.
To access a YouTube account after a death, you’ll need to send a copy of the death certificate and a copy of a document saying you have power of attorney over the account.
Google will only grant you access to Gmail “in rare cases.” Family members requesting access must send a copy of the death certificate and a government-issued ID. But even then, the company doesn’t promise that it will let anyone into a loved one’s e-mail account.
Yahoo has similar requirements. When John Ellsworth’s son died fighting in Iraq and the grieving father asked Yahoo for access to his son’s e-mail account, Yahoo firmly denied the request.
“The commitment we’ve made to every person who signs up for a Yahoo Mail account is to treat their e-mail as a private communication and to treat the content of their messages as confidential,” said Mary Osako, Yahoo’s spokeswoman.
With so many of our dreams, desires and private interests collected and stored in online profiles, the value of those spaces increase. More than just the occasional posting of information, social profiles are, for many, the virtual equivalent of a diary or photo album, a treasure trove of many valued items. And, in the future, as more assets become digitized, these online storage vaults can hold increasingly valuable commercial assets, too, so the situation is one that will only intensify.
Some legal experts will push for legislative remedies, and the technology industry may offer greater choice for current users to consider, but meantime, the very personal nature of these decisions will mean individuals need to consider and plan for their digital assets in the event of the one thing that is certain for all of us: death.
