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Policy vs. Reality

By Adele McAlear

Editor’s note: This is a guest post from our fellow panelists at SXSW Interactive. Adele will join John and Evan at SXSW for the panel discussion, “You’re Dead. Your Data Isn’t. What Happens Now?

In the last 5-years, sharing online through services like Facebook, Twitter, YouTube and Flickr has become mainstream. From stock-trading to eBay, email to blogs, we are more connected through digital communications than ever before. We have undergone a global culture shift that crosses classes, economies and governments.

Every person who uses an online service must agree to that company’s terms of service (TOS) to open an account. These densely written agreements are and filled with legal jargon and sometimes presented in a small window that scrolls forever. That big “I Agree” button underneath lures us to just cut to the chase. And that’s what most of us do: We click Agree without ever reading the fine print.

At that moment, we’ve signed away our control, without ever realizing how it might affect the lives of our families or our digital legacies.

Within a TOS are statements relating to who owns the content that you put on that service – status updates, blog posts, photos, whole web sites, digital purchases – and what can be done with it. Overwhelmingly, the TOS will state that accounts are non-transferable, meaning that you can’t legally give, sell or bequeath the ownership of your account to someone else. Complications set in when a user dies and the policy is unclear on the rights of next of kin or executors.

When it comes to the death of their users, most services are decidedly vague on the issue, if not completely mute. At a time of grief, families who are looking to know what options are available to them and the steps needed to exercise those options will be frustrated by lack of information. It is rare for companies to post fully developed policies related to the death of a user. Is access possible? What documents are needed for proof? Will families have control over all of the content? Will the account be deleted against the family’s wishes once the service learns of the user’s death?

Usually the only course of action is to try to contact someone in customer support to ask for help, and depending on the company and their attitude towards customer service, you may never get a response to your request for assistance.

So, why is it that most online services fail to address the death of its users adequately in their policies? It’s simply not profitable.

Say you are a startup, you drive revenue through customer acquisition and feature improvements. That is where your limited resources are best spent. It’s simply not a good use of resources to have people developing a policy that deals with termination of accounts, end of life and family access to content when you could be building the next release on your development roadmap. Development is forward focused by necessity and the pace is relentless. Creating a death policy is looking decidedly backward and doesn’t add to the bottom line.

Add to that the fact that most of the teams building startups are young and at a stage in their lives where they aren’t necessarily thinking about wills or death.

The global nature of the Internet adds to the legal issues. Take a service like iTunes for example. They are administering rights access to content based on licensing agreements and copyright present in each country. This explains, in part, why they handle requests for access to deceased accounts on a case-by-case basis.

I believe that it will take well-publicized legal challenges to high-profile companies who lack publicly posted comprehensive death policies in their TOS before there are significant changes to the status quo. In fact, the whole notion of what constitutes a reasonable TOS may well come under scrutiny in the process.

Until then, families and heirs to digital assets will continue to be frustrated in their attempts to simply gain access to, and control of, their loved ones digital legacy. In the rush to develop new technologies and with the mainstream adoption of an Internet culture, there is a long way to go before the laws and customs of the analog world catch up to the digital world.

Photo of Adele McAlearAt DeathAndDigitalLegacy.com, Adele McAlear explores the relationship between death, social media and technology. Researching, speaking and consulting on digital legacy, she seeks to help people understand the personal, social, legal and business implications of all that they leave behind. Based in Montreal, her marketing blog is at AdeleMcAlear.com.

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