Jeremy Toeman is the founder of Legacy Locker, one of the many services that help people deal with the issues of digital death and afterlife. Recently he spoke to a group of estate planners about the issue. I’m pleased to hear that the legal community is starting to explore this issue. It’s a good first step to standardizing practice concerning digital assets. Here’s the video from his presentation.
Note: The Digital Beyond does not endorse any one service. We’re pleased to share Jeremy’s presentation with you, however we encourage you to evaluate and use the service of your choice.
Do lifetime Internet bans on individuals (as part of a sentence for breaking the law) amounts to “digital death”? Check out this interesting article by Andrew Moshirnia at Citizens Media Law Project about how the court is using bans as part of sentencing.
We’ve been talking about digital death (and afterlife) in context of the physical death of the individual. But the idea that the court could execute your digital identity is fascinating and potentially scary. Here we are, barely 15 years into the modern Internet, and we considering the revocation of Internet privileges.
But there are greater problems that arise here. The Internet is now breaking away from personal computers, and is finding it’s way to public spaces. It’s also found it’s way to mobile devices. So would this ban VOIP, Internet enabled iPhone apps, and Netflix? Where does it end?
I think that access to the Internet will become more of a right, than a choice. I also expect to see a lot of legislation surrounding this issue in the coming years.
In the physical world, interactions between people are remembered. Sometimes the interaction leaves behind physical artifacts. Letters are frequently treasured objects – remembrances of love, loss, and revolution. Photos of people long gone often become family heirlooms.
That fact that interactions help form our self identity and our bonds to other people reminds us that people are social creatures. So it shouldn’t surprise us that online social media is consuming the Web. An online analogy of an offline biological imperative seems like a natural extension for humanity.
All this online social interaction leaves behind artifacts, too. Tweets, Facebook messages, photos, videos and comment streams of all sorts.
So do these interactions belong to their creators or all the participants? If you are in your friend’s photo, is it also part of your identity? I would venture to say “yes”. But this affirmation raises some serious questions about ownership and our ideas of assets.
If virtual assets are going to be archived and permanently associated with a person, what assets should go into storage? Every picture that you take? Every picture that you are tagged in? Every picture that you talk about with our friends?
Is it possible that the interaction is the asset and that all the participants are the owners?
It seems to me that the old model of creator and creation – owner and asset may become outmoded. I see a new model of interaction and participant. But it isn’t that easy. User agreements form the only legal framework available, and they often state that service is the owner of the interaction.
Would a service that captures and archives the interaction make sense? Are the interactions out of context valuable?
A recent article from Law Vibe provided some advice regarding the legal considerations for digital estate planning. The article recognized the law’s lack of precedence for digital assets and provided some insight about different types of online content like email, blogs and social networking profiles.
As we’ve discussed before, there are two issues at play: content and access.
Content is simple. Anything that you’ve created is your intellectual property and that is governed by traditional property laws. Many sites require that you accept a terms of service document that essentially grants them ownership of your content. That’s right, you don’t legally own the contents of your Facebook profile. Most of these services allow you to cancel your account and remove the content from their servers. In February Facebook took some heat for changing their TOS document to grant them complete ownership of your content. This was to clarify that Facebook should continue to display messages you’ve sent to other people even after you cancel your profile. Their intention was not to deny you control of your own content, despite the legal terms. As long as Facebook values their users there’s a large social control that will prevent them from doing anything nefarious with your content. You should check the terms of service for your accounts and be certain of content ownership.
Access is a bit more complicated. Policies often prevent your survivors from accessing your content and this was the source of several lawsuits like the one mentioned by Law Vibe. This is where your digital executor and digital will come into play. The digital executor can help you carry out your wishes according to a document giving them passwords and instructions. It’s simple and more direct, but lacks legal standing. Law Vibe provides a good set of instructions for how to do this, but you should also check out our Digital Death Survival Guide. My only caution is that you do not list user names or passwords in your legal will. Law Vibe doesn’t mention this, but it’s important to remember that a legal will becomes a public document upon your death.
I’m pleased to see that Law Vibe is thinking about this issue. This is certainly coming to the forefront of modern law practice.
The New York Times ran an article on May 20th with some good legal insight into the issues surrounding death online. We’ve talked about the need for a “digital executor” before, but Patricia H. Char, a lawyer with K&L Gates in Seattle, warns that isn’t enough. Without a durable power of attorney document your executor may be accessing your accounts illegally, and that opens all sorts of issues, especially if other relatives accuse them of misuse.
We’ve put together a guide to help you get your digital life in order in preparation for your death. It walks you through the general process that we recommend.
Lisa, the blogger at clusterfook.com, recently died of ovarian cancer. She blogged about the disease and dying of it. Rest n peace Lisa.
Her blog was important to her so she decided that she would hand it over to her friend, Secondhand Carl.
She made arrangements. Gave him access to the admin. Now he runs the blog and is posting obituaries and news about Lisa’s death. This kind of informal arrangement seems easiest and most personal. No need for lawyers or wills. Just a person’s wishes being carried out. Nice.
How many domain names do you have registered? I can think of at least five between mine and others I manage. If you were to pass before the registration expired, who would renew them? Remember that domain names aren’t property and you can’t really put them in your will. As I see it, and I’m not a lawyer mind you, there are two really simple options to protect them:
1. Set up a corporation, likely an LLC, and register your domain names through it. You can appoint a designee to take over the corporation and they’ll have relatively few issues gaining administrative control of your domains. In my opinion this plan is highly complicated, but is the most legally sound.
2. For those of us who don’t like to draw up legal documents in our spare time, allow me to suggest a more straightforward approach. First create a list of all of your registrars, DNS providers, hosting companies and the like. Record your usernames and passwords with this list. It’s important that you keep this list updated, by the way, because an old/expired password won’t be of much use. Now, dependent upon how much security you prefer you can either place this list in a secure location at home, or go and rent a safety deposit box at your local bank. Next appoint a technically minded designee whom you trust. Again dependent upon your security preferences, either provide them with the location of this list or specifically grant them the safety deposit box in your will. Make sure to set expectations with your designee and everything should go as planned.
I would suggest that you leave specific, written instructions with your designee. You may also be interested in providing messages for your online communities and friends that he could deliver on your behalf.
One thing you shouldn’t do is provide usernames and passwords in your will. It is a part of public record and can be viewed by anyone. Also, you should probably review your plans with your lawyer. As I said before, I’m not one and this information is provided as-is with no warranty expressed or implied. Feel free to use it as you wish, but my colleagues nor I are liable for any resulting damages.
So while mad scientists are busy making digital salvation possible, what can us mere mortals do to enable our digital footprint to outlive us? Well, in this lifetime I believe that people are going to start offering services that allow us to bundle up and archive our digital self.
If we think of that footprint as the total of all our online transactions (posts, comments, photos, videos, etc.) , then bundling up all the assets would provide a view of a person’s digital life.
Of course this issue is clouded by the very idea of ownership. Who owns a comment? Who owns the blog. For that matter, who really owns your Facebook or Flickr profile? You? Or the site? But regardless, the content is there. It’s accessible. It’s store-able.
The only question to consider is why?
We are at the beginning of a new age. Data storage gets cheaper by the day. It enables us to store incredible amounts of data. It is quite possible that whatever makes the leap to digital has a chance of remaining until the end of time.
I set out to investigate what might happen to my online identity if I were to pass away. Here’s what a few online services say about the deceased in their terms of service.
Facebook
“When we are notified that a user has died, we will generally, but are not obligated to, keep the user’s account active under a special memorialized status for a period of time determined by us to allow other users to post and view comments.”
Yahoo (Flickr)
“No Right of Survivorship and Non-Transferability. 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. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.”
MySpace
MySpace does not have an official policy in their terms of service, but I found the following in a CBS News article. “MySpace said in a statement it handles deceased members’ pages on a “case-by-case basis” and does not “allow anyone to assume control of a deceased user’s profile.” Profiles can be deleted if that’s requested by family members.”
Twitter, LinkedIn, Google, Brightkite, ClaimID, del.icio.us and Pownce don’t seem to have anything formal in their terms. So, in short, they aren’t obligated to do anything. My digital identity might live on, or it might not. What is it going to take to bring this issue to the forefront and force the proprietors of the social web to address it? I suppose only time will tell.
