DYING…..DIGITALLY AND THE LAW

Written by Anne Agi

INTRODUCTION

We all have online lives, you know – our other homes: The ones on Facebook, Twitter, MySpace, Hotmail, Gmail and Yahoo etc. Personally, I love my Facebook account as well as my twitter handle. Many of my most robust conversations and interactions have been carried out on the internet via Facebook and twitter. I have also posted some articles online and received thousands of emails. What will happen to these when I pass? Who will have access to which parts of it, and for how long? Who will conserve or maintain my website, Twitter account, Facebook page, Yahoomail account etc. Will they be lost in oblivion in this digital universe or can I Will them away to my family so my heirs can have access to them? Can my descendants benefit financially from all my online articles? Future heirlooms like family photos, home movies, and personal letters now exist mainly in digital form, and in many cases they are stored using popular services like Flickr, Instagram, YouTube, and Gmail. These digital possessions form a rich collection that chronicles our lives and connect us to each other. What will happen to these treasured digital assets and people’s online identities after they die?

Pius Adeyemi, writer, critic and Nigerian Professor of English, who passed on in 2019 wrote so many articles via his Facebook posts and Twitter handles. Hours after his death, the internet was awash with his wonderful articles being posted and reposted. Should his family decide to formally publish same, could they have access to his wall if they do not have his password?

WHAT IS DIGITAL DEATH?

As we build our lives in a virtual world, there is a growing concern about what happens to our online presence and assets after death. The term ‘digital death’ thus refers to how we manage our digital assets after death. It is used to describe the growing issue of what happens to your personas, ideas, feelings, pictures and accounts online after you die. Not many people have given serious thought to these questions. Maybe that is partly because what we do online still feels somehow new and abstract. Or maybe it is because pondering mortality is depressing. Nevertheless, people die leaving tonnes of digital stuff they have produced – billions of tweets, billions of images on Flickr; hundreds of thousands of YouTube videos uploaded; content from 20 million bloggers and over 500 million Facebook posts. ‘With the hoard of digital assets left behind, academics have begun to explore the subject (how does this change the way we remember and grieve?), social-media consultants have begun to talk about the legal implications and entrepreneurs are trying to build whole new businesses around digital-afterlife management’.

While they are some who agree that the sense of digital life beyond death is exciting, and actually leave a last message to be posted on social media by their friends or family and others whose accounts are now transparently run by their partners or families, for others, the fate of tweets and status updates are of no consequence. Several commentators have even declared categorically that they do not want to be left hanging in the virtual world. Others posit that preservation of digital articles is a minus to society and that it is strange to continue the online profile. In an article published in the Times of India in 2015, Pooja Dager a 37-year-old manager stated that she is not comfortable with accessing a deceased person’s account. She says she has “not even tried to venture into that territory” after her husband’s passing. “Only his bank accounts were transferred to my son’s name, that’s it. The others I try not to think about. I just let them be,” she adds. Viktor Mayer-Schönberger, in his book “Delete: The Virtue of Forgetting in the Digital Age,” worries that preservation of digital files has created a scenario where “Forgetting has become costly and difficult, while remembering is inexpensive and easy”. Some even posit that it is self-delusional egotism.

Notwithstanding these worries, as internet users age, many more people will have to confront the issues of digital death.

In their book, “Your Digital Afterlife,” American bloggers Evan Carroll and John Romano, interaction-design experts in Raleigh, N.C., who run a site called ‘TheDigitalBeyond.com’, maintain that people need to start planning for what is to be done with their email, online banking and trading, social media, photo-sharing, online billpay and blogs after death.

COMPANIES AND WEBSITES APPROACHES TO DIGITAL DEATH

Currently companies, online platforms and websites are taking a ‘handsoff’ approach toward digital death; they have vague policies or none at all on what to do with accounts of those deceased. This creates a scenario where it is sometimes not clear what will happen to a person’s account once they die. There are often numerous legal, cultural, and technical issues that could prevent access to a deceased asset, and if one does not take steps to make them available to one’s heirs, their digital legacy could be lost forever. Family or close friends who might want to access these accounts may not be able to do so before going through these tedious document submissions and in some cases, even legal counsel.

Facebook, for example, currently has no service akin to a virtual will but gives an option to memorialize a deceased person’s profile or remove the accounts and social media profiles once they receive intimation/verification of death of a user. Memorializing an account removes certain sensitive information and sets privacy so that only confirmed friends can see the profile. A family member or friend has to fill out a brief form and provide proof of death of the user like an obituary or news article. See (www.m.facebook.com/help/408583372511972).

In the event of the death of a Twitter user, Twitter closes the account and helps family members recover public tweets from the account after they provide them with certain information. They may not hand over access to the account, or share any non-public information related to the account. (See www.support.twitter.com/groups/33-report-a-violation/topics/148-policy-information/articles/87894-how-to-contact-twitter-about-a-deceased-user).

MySpace deceased user policy states that if you are the next of kin, they will not grant you access to edit, or delete any of the content or settings on the account yourself. You can email accountcare@support.myspace.com and attach appropriate documentation such as a death certificate of the deceased user, their MySpace ID and request them to either preserve, remove content or delete the account altogether. (See www.faq.myspace.com/app/answers/detail/a_id/369/kw/deceased/r_id/100061).

In 2013, Google introduced a step-by-step process allowing users to plan what they want done with their account. The Gmail policy for accessing a deceased user’s account is a lengthy two-part process where you send them several requested information. Google will proceed to review the request and if approved, you will be required to get additional legal documents including an order from a U.S. court and/or submitting additional materials. Even after all this it is not guaranteed that you will be given access to the deceased user’s account. (See www.support.google.com/accounts/troubleshooter/6357590?hl=en&rd=2 ).

Yahoo has a much stricter deceased user policy. No one can gain access to your account once you die as Yahoo will not grant permission to anyone to access a deceased user’s account. You can only request them to delete a dead user’s account. (See www.help.yahoo.com/kb/SLN9112.html?impressions=true).

With the stringent policies outlined above, one sees the need to plan for a digital afterlife as that may save the deceased family from a lot of painful hassles after death. (After all, articles you write can fetch funds for your estate after you pass away)

MANAGEMENT OF DIGITAL ASSETS AFTER DEATH

There are several ways one could arrange for the management of his/her online assets after death.

(1.) Digital Wills

Just as one will prepare a will to dispose of worldly goods left behind: financial assets, personal effects, belongings likely to have sentimental value to others, one could also speak to a lawyer and leave instructions on the disposition of digital assets in a will and appoint a digital executor to manage them; there could also be further instructions on whether you want your page(s) closed or if you would like someone to answer your friends’ posts on your behalf, maybe for a while. Even if you have not made such arrangements, all of this will get sorted one way or another, maybe in line with what you would have wanted, and maybe not.

One case of a disappeared digital legacy involves Leslie Harpold, a Web pioneer who died unexpectedly in 2006. In early 2010, after Leslie Harpold’s death, some of her friends noticed that her sites ‘Harpold.com’ and ‘Smug.com’ ad quietly disappeared. These friends then lobbied Harpold’s family to let them preserve her work. This offer was declined. Had Leslie Harpold left directives about her online work, those directives would have been honored. Thus preparing a comprehensive inventory of one’s digital assets, with instructions on access as well as disposition of these items, is critical to ensuring a person’s assets are properly maintained after their death.

In the West, some people are writing out digital wills, spelling out how their virtual life should be handled post-mortem. In 2010, the founders of Entrustet, Jesse Davis and Nathan Lustig became the first two people in America to execute legal Wills that incorporate digital assets. Attorney Nathan Dosch, who helped the two execute their wills, said that incorporating the digital assets was easy and that he would feel comfortable doing the same thing for his current and new clients.(See Entrustet Founders Execute North America’s First Wills That Incorporate Digital Assets, http://www.prweb.com/releases/2010/05/prweb4029134.html).

In India, a small number is taking an interest in their digital afterlife. Nishant Shah, director, research, at the Bangalore-based centre for internet and society, says that though the trend is nascent, people have started including their digital accounts in their wills. Sandeep Nerlekar, MD and CEO Terentia Consultants, an estate planning firm that handles both online (through a portal: www.onlinewill.co.in) and digital wills, says, “Now, even social networking sites are becoming part of one’s assets.

A clause in a digital will could read: ‘My executor shall have the power to access, handle, distribute and dispose of my digital assets’; or ‘I have prepared a memorandum with instructions concerning my digital assets and their access, handling, distribution and disposition. I direct my executor and beneficiaries to follow my instructions concerning my digital assets’.

(2.) Use of Online Services

Apart from using a will to dispose of digital assets, one could have a simple conversation with one’s heirs, using online services like ‘securesafe’ that let users store passwords to pass along when they are gone.

Another online service similar to ‘securesafe’ is www.worldwithoutme.com which has various tools like Vault, which lets you create assets of all your digital information like login credentials and other sensitive documents in one safe and secure place and pass it on directly to your loved ones without any middlemen or legal hassles. You can also choose who will receive what just like in a Will. You may use the Trigger tool to set up who will declare your demise, and when your digital inheritance will be set in motion.

‘Entrustet’ is another such online service. Founded by Jesse Davis and Nathan Lustig, Entrustet provides an automated system for storing passwords and instructions on all digital assets. Entrustet also offers an “account incinerator,” to obliterate content its users would prefer not to have linger on after them. (See www.entrustet.com ).

Digital-mortality business, “emailfromdeath’ gives the idea of speaking from beyond the grave. It provides an automated service that allows its users to send personal messages or data to whomever, after they die. (http://emailfromdeath.com).

THE LEGAL PERSPECTIVE

It forms part of Estate Law

From a legal point of view, digital inheritance requires that digital data forms part of the descendant’s estate. The concept of universal succession means that heirs enter into the legal position regarding property rights of the testator by law. Such property rights as elements of the descendant’s estate may be enshrined in laws.

Veret (Rose) Shavit in in her blog, ‘Vered (Rose) Shavit’s Blog’ writes on the topic: ‘Death in the Digital Era & Life After Death on the Net: the Digital, Virtual and Online Aspects of Current Death’ and states that in Israel, the law as regards bequeathing digital assets is that:

“If it is a material digital asset, such as a hard drive, disk, disk-on-key, cassette, computer etc., it is considered the same as any other material asset and the law determines who it will go to if there is no will. Digital assets that are not material, such as articles a testator has written, programs developed, projects built on a computer, passwords and so on, are considered intellectual property and can be inherited according to a will or the law”.

(See Vered (Rose) Shavit’s Blog, Death in the Digital Era & Life After Death on the Net: the Digital, Virtual and Online Aspects of Current Death, http://digital-era-death-eng.blogspot.com.ng/2012/11/after-death-legal-aspect.html).

Privacy Issues

The issue of privacy is another issue that arises from bequeathing digital assets. It seems simple: parents, benefactors or heirs wanting to have access to the email account of a deceased. As they see it, they are his benefactors, his heirs. Therefore, just as they received all his material goods, so they should receive all his digital ‘goods’ – like his email account. However, the issue is not as easy as it sounds. Most digital assets are password protected and as such most internet sites are very committed to clients’ privacy – could it be that a client may not have wanted his parents to have access to his mail? Furthermore, at least two people are involved in every mail correspondence. By exposing the mail a client receives, personal things written by other people could be exposed as well and one could argue that it is the duty of the service provider to continue to guard their privacy, even if one of the correspondents passed away.

The case of Justin Ellsworth is a case in point. Justin, a 20-year-old Marine, was killed in Iraq on Nov. 13 2004. His grieving father’s effort to digitally preserve his sons email became a major privacy debate. John Ellsworth had pleaded with Yahoo to release his son’s private e-mails to the family. Yahoo initially denied the request, though they were eventually forced to release the details of Justin Ellsworth’s e-mail to his parents by a court order. Maybe Yahoo’s commitment to guard Justin’s privacy includes their commitment to guard his friends’ privacy as well? Vered (Rose) Shavit posits:

‘There is no doubt that the copyright of Justin’s outgoing mail belongs to Justin, and so to his parents. But what is greater – his and/or his friends’ right to privacy, or his copyright (and his parents’ right to inherit) of his outgoing mail? Incoming mail is an even more complex issue, because the copyright of those emails belong to the sender and not the receiver – Justin only received the right to read the mail, he did not receive the right from the senders to publish the mail he received or to forward it on, and therefore he cannot bequeath this right to his parents.

These are complex issues and dealing with death in the digital age will probably require us to expand our concept of privacy. Each one of us has a private life and a right to privacy even after death which websites strive to protect. The question is, whether we can realize this right when so much of our most private information is embodied in digital assets and clearly the law in this area has not yet caught up with technology.

Presently, executors are at the mercy of service providers and problems may be encountered if service providers do not recognize the consents given by the deceased in digital wills. There may also be jurisdictional issues at stake. However, for the present (or at least until other service providers think otherwise), setting out express instructions in a Will or Letter of Wishes gives the user the best chance of enabling his loved ones to inherit his personal digital effects.

Conclusion

As this trend of Digital Death becomes more popular, conferences are held round the world to discuss issues that arise. Digital Death Day is one of such conferences which have been running twice annually since May 2010 in Europe and North America. Discussions at these conferences include stimulating a reconsideration of how death, mourning, memories and history are currently being augmented in our technologically mediated society and whether most people scattering digital objects across the Web have strong feelings about their persistence, or, as some others suggest, it simply is not worth the time to dispose of them.

Presently, the digital identities of people whose web contacts are not sophisticated technology savvy types are simply languishing, or quietly fading away, controlled not by friends or family but by the defaults of the services that enable their creation. And maybe that is as it should be: what difference does it make what happens to the mundane accumulated debris that makes up so much of what we do online? Once the people who cared about our status updates are gone, who cares if the updates persist? One answer to that question is future historians. They surely would not be poring over as many physical documents as today’s historians do, and surely the documentation of life in the 21st century, in digital form, is unprecedented. Fragile digital selves, then, represent a potential loss to the future if not preserved.

In Nigeria where only a small percentage write wills for physical assets, preparing for digital death is not something a lot of people are thinking about proactively, definitely not a priority like financial assets. For effective acceptance of the concept of transfer of digital assets therefore, it is imperative that the necessary sensitization of the populace be carried out on the advantages of digital wills and amendments made to the existing laws to ease divestments of digital assets.

For my part however, I shall leave a comprehensive will for my family detailing how I want my Facebook, Twitter and e-mail accounts managed after I am gone. If I have written any extraordinary articles for which anyone seeks the rights for some beneficial reason, I would expect my family to release the rights and a fee charged for my estate. I will also expect from my family a beautiful and elaborate memorial for my Facebook and twitter accounts. I expect my relatives and friends to visit my online memorial from time to time. I shall smile at all who do from heaven where I will hopefully be.