Dealing with the Digital Remains of the Dead

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Digital Remains
Digital Remains

Damien McCallig is a Ph.D. candidate at the School of Law, National University of Ireland, Galway and an Irish Research Council postgraduate scholar. His research, titled The Law of Digital Remains: Reconciling the dignity and interests of the deceased with those of the living, aims to provide a theoretical, philosophical and practical framework for developing an appropriate regulatory regime for digital remains aimed at reconciling the rights and interests of the deceased with those of living stake-holders. Follow him on Twitter at @DamienMcC_dli.

What happens to email accounts, social network profiles and other digital remains after the account holder dies? As people’s lives become even more entwined with digital media, access to and control over the digital accounts and related content of deceased persons has taken on greater significance.

Some of these accounts may have economic value depending on their use, the status of the account holder while alive, or the type of account in question. For example, players of massive multiplayer online games can amass significant digital assets through virtual property or virtual currency, which often are traded for monetary value offline.

The vast majority of digital remains, however, will primarily hold sentimental value as digital artifacts to remember deceased loved ones in the same way old letters and photographs stored in shoeboxes and scrapbooks acted as mementoes for generations. Unlike the physical artifacts of past generations, the digital accounts and content aren’t automatically recognized as property which passes through succession and probate law.

Estate planning attorneys are increasingly faced with novel questions such as, what rights—if any—do surviving family members or heirs have with respect to the online accounts of their loved ones? Can one bequeath social media, email or other online accounts? Some users seek advice on how best to ensure all their online accounts are deleted at death in order to take the secrets of their online lives to the grave with them.

Part of the answer to these questions is found in the terms of service (a legal contract) to which most people click ‘I agree’ without ever reading. Many service providers have specific policies relating to the death of an account holder. For example, Google’s Inactive Account Manager permits subscribers of their services to make arrangements for the transfer, or deletion, of the data stored in their Google accounts following death. Google stands alone in this measure; no other major service provider gives users an in-service option of nominating heirs who can subsequently claim data from accounts.

On Facebook, a person can memorialize a deceased user’s account, which means the Facebook profile is frozen, limiting those who can see or locate it to confirmed Facebook friends who can continue to share memories on the memorialized timeline. Should a surviving family member wish to access the content in a Facebook account they must follow what Facebook describe as “a lengthy process” which ultimately requires a court order.

By signing up with Yahoo! you agree, “that your Yahoo! account is non-transferable and any rights to your Yahoo! ID or contents within your account terminate upon your death.”

Google, Facebook, and Yahoo!—like all other major service providers—won’t hand over a password for a decedent’s account. This doesn’t prevent the account holder from sharing login details including passwords with chosen beneficiaries in advance of death. Online services have also emerged to assist in identifying online accounts and sharing the passwords of deceased persons with such beneficiaries, examples include PasswordBox, SecureSafe, and CirusLegacy. It’s important to keep in mind, logging into a third party account (even if the account holder is dead) will violate most terms of service agreements and may result in the account being terminated or locked. For example, no one can log into a memorialized Facebook account (even if they have a valid password). Furthermore, access in breach of the terms may be deemed unauthorized access which is a criminal offense under the Computer Fraud and Abuse Act.

Some families have taken the legal route to secure lawful access to their deceased relatives accounts but this has had mixed results. The earliest case appears to be Justin Ellsworth, a US Marine killed in Iraq in 2004. Justin’s father won an order from the Oakland County Probate Court in Michigan against Yahoo! which granted him access to copies of emails in Justin’s account. However, based on a US federal law enacted to protect privacy in electronic communications, a UK family was refused an order by a California court which would have compelled Facebook to provide the contents of their deceased daughter’s account.

At present, seven US states: Connecticut, Idaho, Indiana, Nevada, Oklahoma, Rhode Island and Virginia have enacted laws incorporating certain online accounts or information into the probate process. Little consistency exists in the scope of these laws or the powers they create; the law in Virginia only applies to the online accounts of children (under 18 years of age), while the law in Nevada merely grants a personal representative the power to terminate the account of a deceased person.

In an attempt to address the issue of access to the digital accounts of the dead and in order to harmonize laws in this area, the Uniform Law Commission is currently drafting a Uniform Fiduciary Access to Digital Assets Act. The discussion drafts which have emerged merely create a default statutory license for the personal representative of a decedent to access the digital accounts and obtain copies of the account contents. This access is then subject to the online service provider’s terms of service agreement.

The proposed default access for a personal representative would be created unless the decedent’s will clearly indicates otherwise. Under current proposals the Uniform Law won’t give a personal representative the default power to distribute the digital accounts and content to beneficiaries. Laws in this area are only slowly responding to the emergence of digital remains issues; therefore, if account holders wish to ensure their digital legacy is passed on to beneficiaries, certain pre-planning and self help measures need to be undertaken.

For Google users, Inactive Account Manager provides a workable solution. For other services, one method currently available is to regularly download and back up account data and content to a personal device and to ensure access to the device is provided, with instruction, to a trusted person following death. Otherwise, the decedent’s digital legacy will be subject to the vagaries of service provider’s ever changing terms of service and deceased user policies, and to emergent but inconsistent state laws.

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