Washington Lawyer

Managing Your Digital Afterlife

From Washington Lawyer, January 2013

By Sarah Kellogg

discEveryone dies, but thanks to Web sites and social media networks, your digital life likely never will. Long after you’re gone, your digital presence will echo throughout the Web—on Facebook, Twitter, YouTube, and countless other social media platforms—for years, if not decades, to come.

All those videos, status updates, tweets, and e–mails have so expanded the average person’s digital footprint that he or she carries into death a mountain of electronic content. While much of it is personal communications or amusing fluff, individuals also have built up confidential financial information through online banking systems as well as sites such as Amazon and PayPal. In addition, there are valuable libraries—e–books, games, movies, subscriptions, etc.—that traditionally have been passed on to surviving family members.

Much of this digital information, both confidential and meaningless, is archived for posterity and profit by Internet service providers and social media platforms on their own or in partnership with the Library of Congress and other agencies without your cooperation or knowledge.

Given this environment, technologists believe individuals must be better stewards of their digital assets in life, but also in preparation for death. From the rich and famous to the guy next door, grieving families and estate executors are increasingly having to grapple with digital assets after death—divining the scope of the assets, figuring out how to access them, and deciding how best to preserve or dispose of them. For most Americans, however, digital assets remain a forgotten and neglected death–related obligation.

This is one of the things where firsthand experience really is the best motivator,” says Evan Carroll, who, with colleague John Romano, edits The Digital Beyond, a Web site that advises attorneys and consumers on how to plan for the disposition of digital content. The two also cowrote the book Your Digital Afterlife: When Facebook, Flickr and Twitter Are Your Estate, What’s Your Legacy?

“In estate planning situations, you often don’t receive more than one chance, however. That is the downside to not writing down your wishes for your digital assets,” Carroll says. “I do think some individuals are becoming more and more savvy to the fact that they need to plan and prepare ahead of time for their digital assets, but it is still a minority of people who know that something should be done and are taking action.”

Not so very long ago, the idea of writing a will or power of attorney that includes provisions outlining how to dispose of digital assets, such as e–mails and social media posts, and appointing a digital executor would have seemed novel to the point of absurd. Now it is essential, legal experts say, because so much of life, both professional and personal, has found its way to the Internet.

Survivors must be alerted to usernames and passwords for individual accounts, but, more important, they must be informed about the extent of the deceased’s digital world. Overwhelmed by grief, they may not have the emotional wherewithal to look for the Web sites, blogs, and social networking sites of their loved ones. And they certainly won’t have the energy to sort through 10,000 e–mails and weed out the detritus from the valuable interactions.

As with traditional wills and powers of attorney, digital estate planning is not at the top of everyone’s list. Americans remain especially reluctant to contemplate a future that doesn’t include them, and most citizens have yet to even consider the immortality of their digital resources, or that they’re even considered resources.

“The traditional things we have done for estate planning—proof of death, changing titles, all those sorts of things—may need to change in this new context of digital assets,” says Dennis Kennedy, a St. Louis, Missouri, technology attorney who is also a recognized expert on how technology intersects with the law. “One of the last questions you tend to ask is, ‘What happens when somebody dies?’ Nobody is planning to die. Very few people want to think about that and what is going to happen to their stuff, but it has to be done, and it has gotten more complicated with the addition of digital assets.”

Kennedy and other legal technology experts believe that only with thoughtful preparation and a thorough evaluation of digital assets can an individual provide the guidance needed to grieving loved ones to settle a virtual estate. The goal is not solely to access digital content for the family’s sake, of course, but to ensure that the resource, whether it’s a frequent flyer account or music download, is handled in a manner that observes the desires of the departed.

The Digital Life
Today, there are more than 1 billion Facebook users worldwide, some 500 million people who play online, role-playing games, and more than 160 million members of LinkedIn. Moreover, some 5 billion images are shared on Flickr, more than 40 million blogs parcel out insights and advice, and 120 billion videos call YouTube home, impressive even if half of them are of cats doing tricks.

“Online, we generate a lot of assets, but we don’t think of them as assets,” says Eric Goldman, a professor of law and director of the High Tech Law Institute at Santa Clara University School of Law in California. “We don’t manage them as assets. We create content. We create data. We develop relationships. All of those things are valuable, but we don’t manage them as valuable assets.”

These digital resources are sprouting up so swiftly that society is barely able to understand them, let alone envision how they might change individual lives. A world built around 140–character posts and 30–second videos creates opportunities for new and varied communications and connections, but it is a world with boundaries and limitations that aren’t easily comprehended from the first moment of creation.

All this opportunity can be a burden as well. People must manage different accounts on various platforms for personal and professional use, from keeping tabs on usernames and passwords to updating content to figuring out how to end online memberships once they go sour. Social media might have opened up a world of possibilities, but it also has burdened the average person with some serious digital maintenance.

And even if most Americans haven’t visited an estate attorney, written a will, or appointed an executor, they still have a basic understanding of what constitutes an estate—personal and business assets, personal artifacts such as photos and letters, and personal effects. But what do they really know about their digital assets?

“We tend to not write wills and plan for incapacity or death,” says Naomi R. Cahn, the Harold H. Greene Professor of Law at The George Washington University Law School. “But most people are not putting off creating a plan for their digital assets because they don’t want to think about it. They don’t know they actually have digital assets that have any value and are worth planning for.”

A 2011 survey by McAfee, Inc., the world’s largest dedicated security technology company, found that some Americans are not only aware of their digital assets, they can put a price on them. These individuals estimate the value of their digital effects—photo libraries, personal information, and entertainment files—at about $55,000, on average, compared to $37,438 for consumers from other countries.

Survey respondents said they had nearly 2,800 digital files stored on at least one electronic device, such as a smartphone, computer, or game console. The assets were varied and broad, including music and movie downloads; photographs and memorabilia; e–mails; health, financial, and insurance records; résumés and portfolios; and hobbies and other projects.

The survey found that individuals valued personal memories most highly because they are “impossible to restore” if lost. On average, they valued personal memories at $18,919, far higher than personal records ($6,956), career information ($3,798), hobbies and projects ($2,848), personal communications ($2,825), and entertainment files ($2,092).

Unlike physical possessions where most owners already have made decisions about what to keep and what to throw away, digital repositories of information, photos, and entertainment files tend to pile up. That’s why electronic content is so attractive. No matter how large the collection, the weight of it won’t buckle the back or the pocketbook of even the most avid user.

But a person need not be a virtual hoarder with a proliferation of electronic storage units in the Cloud to worry about cleaning up digital assets before he or she dies. The average user has plenty of digital assets stacked in the “garage,” whether he or she wants to share digital photos with family members and friends, cash out earnings from Second Life, clean out Dropbox and Google Docs accounts, or shutter a personal blog. All of these require an estate planning strategy.

Digital Estate Planning
The first steps in establishing an estate plan for digital assets are simple, experts say, and they require a fine eye for details. Individuals need to assess what they have collected in digital assets in terms of estate planning as well as reputation management. What content exists and where is it located? For the person with only a laptop computer and a Washington Post online subscription, the evaluation will be short and simple. For the social media butterfly, the process of tallying social media, entertainment, and personal information accounts will be more daunting.

Next, it’s important to decide what should happen to these digital assets after death. Should e–mail accounts be open to the executor or a family member to sort through for important contacts or key information? A lot of critical communications are kept in e–mail because most people treat these accounts like virtual file cabinets, saving e–mails for months and years. An individual should also try to make key decisions about which photos and videos should be shared with loved ones and which should be discarded. While everything has value to the user, that doesn’t mean it will have value once they die.

“E–mail is incredibly important when you think about digital assets,” says Carroll of The Digital Beyond. “It’s like a master key to other accounts. If you’ve ever reset your password, all of that verification process is in your e–mail. If you do nothing else, make sure you have your e–mail in order.”

And don’t assume that the most inconsequential aspects of digital life won’t be valuable to family members and friends. Obviously, everyone thinks of photos as meaningful for loved ones, but they also may want to peruse Netflix or GameFly queues to see what videos and games the deceased enjoyed or to hear the songs he or she downloaded from iTunes or other music–sharing sites.

“One of the most common mistakes is assuming that everything is trivial and not important,” Carroll says. “If you’ve lost someone, you cling to everything they may have had. You realize that even the most pedestrian items become very meaningful after someone is gone. The biggest mistake is not to assume too much about what the heirs will want to have.”

Another significant phase in the process is documenting how to access accounts. Without a username and password, cracking accounts becomes a herculean task that could take months if not years. The account information can be written down on a piece of paper and shared with an attorney, the executor of the estate, or a trusted family member or friend, or the individual could choose an online estate management option. But experts say that a big no-no is to include account information in the will; wills are public documents and they are accessible to prying eyes.

Online resources for controlling the digital afterlife can complement a traditional will, but they also can stand on their own in managing digital assets. Many online companies offer a variety of services, from managing the “death” of digital content to serving as a vehicle to convey critical information such as content-related instructions and passwords for online accounts.

Some of the most recognizable companies providing these services are DataInherit, Legacy Locker, and SafeSecure—all of which are considered digital estate management services. These companies provide automated systems for storing passwords and providing instructions to loved ones on how to deal with digital assets. Some companies also offer services to destroy content that the user would like to have eliminated once he or she has died.

They all have different ways of verifying the death of a client, whether by requiring a third party to report the death, checking Facebook and Twitter for account activity, or generating periodic e–mail prompts to see if the client is still alive, although the latter isn’t a foolproof method, of course, and it can be a bit startling to be asked whether or not you’ve died.

While gaining in popularity, these startup companies face several challenges, not the least of which are concerns that they are so new, they might not be around when the client dies 20 or 30 years from now. They also have had to convince the estate–planning community, which is still struggling with the ever–changing technology, that the digital afterlife is a worthy preoccupation.

Ownership v. Access
What has become clear in recent years, as families have tried to gain access to social media accounts and other digital assets after a loved one has died, is that more often than not access can be difficult, if not impossible. The industry heavyweights hold tight to the information on their servers, and they are reluctant to share it, even when there is a good reason.

For Facebook, Google, Twitter, and Yahoo!, to name just a few, releasing any confidential information involves a complex legal calculation, requiring these companies to weigh the privacy rights of the user versus the right to closure for families. More often than not, they come down on the side of protecting the privacy of the user. Yahoo requires a court order to access the account. A list of end-of-life policies for most popular online commerce and social media sites can be found at DeceasedAccount.com, which also offers digital caretaking and management services.

The industry is also fierce in protecting so–called “purchased” content, such as books from Amazon’s Kindle or music from iTunes, from family members seeking to acquire these digital items after the death of the user. Unlike books or CDs purchased at a store, individuals who buy media online are not acquiring ownership but rather are leasing the materials for the rest of their lives, and so there is nothing to transfer to a family member in the case of a death. These rules are explicitly spelled out in the Terms of Service provisions that most purchasers click through on the way to the download.

“Apple owning all of your music in iTunes has sparked a number of posts and some rage, but then it always dies down,” says Tom Mighell, a national technology consultant and attorney. “It is not something that has reached a point of enraging people, but then not that many of us have been in a situation where someone we care about has died and we cannot inherit their music or e–books.”

The Terms of Use provided by Apple and Amazon make it clear that consumers are granted a “nontransferable” right to use the content, but users cannot give it away to friends or family members at any point in their lives, or even after they’ve died. While some enterprising attorneys are looking to challenge that provision, the language in the agreement is apparent, and the user has agreed to the terms, whether or not he or she has read them. Neither Apple nor Amazon responded to requests for comment.

“When we receive these items electronically, they are just leased,” says Jason Mazzone, the Lynn H. Murray Faculty Scholar in Law at the University of Illinois College of Law and an intellectual property law expert. “We have a right to see the words on the screen and hear the sound. There is nothing tangible. According to the providers, you violate the Terms of Use and access can be shut off. If you die, you can’t pass collections along to somebody else. If you don’t want something you bought, you can’t give it away. There is no ownership.”

Goldman, the Santa Clara University law professor who also blogs on Internet law matters at the Technology & Marketing Law Blog, blog.ericgoldman.org, suggests the best approach for users in acquiring e-books and music is one that has been around for ages—go in knowing “buyers beware.” “There’s a lot of good news for us with this technology,” Goldman says. “So many things are going right for us from a technological standpoint, it would be a shame if we didn’t embrace them even if they do come at some costs and consequences.”

The digital afterlife is a new enough phenomenon that even the more experienced hands in the business are still trying to find the best way to handle it. Twitter established its digital death guidelines in August 2010; the first incidence of a digital afterlife policy taking shape at Facebook occurred in 2005.

It is estimated that nearly 400,000 people with Facebook accounts pass away each year, so Facebook has more experience with this than most. Today, Facebook provides options for family members to close accounts as well as to use them to memorialize loved ones. “When an account is memorialized, only confirmed friends can see the profile (timeline) or locate it in Search. The profile (timeline) also will no longer appear in the Suggestions section of the Home page. Friends and family can leave posts in remembrance,” according to Facebook.

A Blank Slate
What becomes abundantly clear, with even a cursory review of the U.S. law on digital assets and the afterlife, is that there are few state and federal statutes specifically designed to protect consumers’ ownership of their digital materials. Some federal laws, such as the Stored Communications Act governing privacy rights, have been applied, but experts say these laws do little to address the issues that arise with death and digital assets.

As often is the case with new technology, the law is lagging behind high-tech development. Control over content rests almost exclusively now with the social media and Internet companies that provide the platforms rather than the user. “In the absence of any legal regulation, companies like Facebook, Twitter, and Yahoo set their own policies with respect to the disposition of these things when users die,” adds Mazzone of the University of Illinois.

Mazzone believes the federal government should intervene to give individual users the authority to determine what happens to their digital assets upon their deaths instead of ceding that power to social networking sites. He notes that the Health Insurance Portability and Accountability Act (HIPAA) could serve as a model for preserving privacy while giving users greater control. HIPAA allows individuals to designate who can get access to their health records.

But not everyone is convinced that a new law will be able to artfully balance the parties and their concerns. There is the decedent’s privacy, the privacy of the people he or she communicated with, intellectual property rights, the grieving process for survivors, and the economic interests associated with certain digital materials.

“We’re in a relatively new situation where a third-party vendor may control big chunks of our life or may have the materials that represent a big chunk of our lives,” Goldman says. “I don’t know how many e–mails I have accumulated in Gmail, but my guess is it’s over 10,000. There’s a lot of value and a lot of personal information in those e–mails.”

Goldman notes that there is no good analogy in the pre-electronic world for this type of situation where a third-party vendor has such intimate knowledge of an individual’s life. Given the power of this knowledge, it behooves the individual to govern this relationship by contract. “If we don’t govern this by contract ourselves, then we get what we get,” Goldman adds. “If we don’t deal with our own situations after death, then we’re not guaranteed to get the result we want.”

There has been a little more activity in the courts. For one thing, families who’ve run into the corporate confidentiality walls have tried to climb them using the common sense notions of privacy and personal ownership. One of the pivotal court cases in the disposition of digital assets involves the family of Lance Cpl. Justin M. Ellsworth, a Marine killed in Iraq in 2004. Ellsworth did not tell anyone his password for his Yahoo e–mail account, and the company declined to share it with his family. They sued Yahoo, and eventually a probate judge ordered the company to comply. Yahoo gave the family a CD containing Ellsworth’s e-mails.

Cases like this one have prompted a number of state legislatures to pass laws to outline the rights of individuals and families when trying to access digital accounts. Connecticut, Idaho, Indiana, Oklahoma, and Rhode Island have stepped into the breach with laws on the subject in the past few years. Legislation on digital rights is pending in Nebraska and New York.

In Connecticut, Indiana, and Rhode Island, the law requires a death certificate and proof of an executor’s appointment to allow a representative to see accounts, according to the National Conference of State Legislatures. Idaho gives the executor or a personal representative the right to control the deceased’s social media, text messaging, and e–mail accounts. A will or formal order can open accounts in Oklahoma, while in Idaho, a will or court order can restrict access.

A study committee was appointed by the Uniform Law Commission (ULC) to address the digital assets question and to draft model legislation dealing with the rights of the fiduciary to access digital assets if a person is ailing or dead.

“We’re hoping to draft a uniform act, so that should not only help states as they think through these issues, [but] help the Internet providers as well,” says Cahn, the George Washington University professor who also serves on the ULC’s Drafting Committee. “It’s time to act because we’re seeing more and more problems associated with this issue.”

A Brave New World
Once all the work is completed in deciding how best to share and manage online content, what’s left is figuring out how to say goodbye. For those contemplating death, or just interested in being prepared years ahead of time, technology provides new and unique ways of having one last contact with loved ones and friends from beyond the grave.

Numerous Web sites are willing to serve as intermediaries between grieving family members and the dying or dead. Smartphone applications (or “apps”) such as My Last Wish, Deathswitch, and If I Die allow the deceased to connect about their final dreams or to send a final message to their loved ones after they are gone.

My Last Wish is the ultimate social networking tool for the gravely ill. It allows the user to toss a final wish out into cyberspace, in a brief number of characters, of course, and to see if other people who are dying share the same wish. It creates a community on death’s door.

Deathswitch is a more concrete approach to an ephemeral problem. Its common uses include sharing computer passwords, final wishes, unspeakable secrets, love notes, the last word in an argument, and funeral instructions. While the company calls it “information insurance,” it also could be used to throw one last barb from the grave.

With If I Die, the user can record any number of videos or write posts that can be published posthumously after three appointed trustees or Facebook friends have confirmed the person’s death. The messages can be published in one blast or scheduled for periodic release. “If I Die appeals to people as it is a human need to seek immortality, and though If I Die doesn’t give you this exactly, it does give you some control over what will happen after you’re gone,” says Erez Rubinstein, the marketing director for the app.

“We are all curious to know how we will be remembered once we pass away, and here, for the first time, we have a chance to influence how exactly people will remember us and carefully choose our last words,” he adds.

In a TED Talk in July 2011, Adam Ostrow, editor in chief at Mashable, a social media news Web site, suggested that someday smart robots could be programmed with a lifetime of tweets, e–mails, and Facebook posts to interact with family members after a person has died. The same information might be used to program a hologram of the deceased that could be beamed into the family’s lives. Talk about a brave new world.

Ostrow’s vision of robots and holograms being implanted with the digital “soul” of a person may seem far–fetched, but some scientists have been contemplating how to collect the digital traces of lives and infuse them into avatars. Whether this science fiction future is appealing or not, it behooves Americans to prepare for it as if it were possible.

“This is a period of transition, and its going to even itself out as we get more comfortable with the technology,” Cahn says. “We just need to get through this rough period and figure out what we’re doing and what everything means for us.”

Sarah Kellogg wrote “Campaign Finance Frenzy, Post-Citizens United,” which appeared in the October 2012 issue.