We store a lot of personal data on the Internet: Facebook posts, Instagram photos, iTunes music and movies, not to mention e-mails and private chats. Our lives have moved online, but when we die — as morbid as it is to consider — who gains our virtual assets?
They’re worth something, and in most cases, those memories are priceless to grieving family members. But how can you pass on your accounts to your heirs? Or, if taken a step back, can you even bequeath them in the first place?
I had a friend that passed away in high school. Suddenly, family, friends and acquaintances flocked to his Facebook profile to share memories. As notifications popped up on my feed, it was comforting to read first-hand stories about him. In a way, Facebook kept his memory alive — it is last “place” I spoke to him, and mourned of his passing. There is also a comforting assurance that the memory of him is just one click away.
Karen Williams found out the hard way. When her son, Loren, died in a motorcycle crash, she turned to the social network in hopes of learning more about his life. She had his password, but decided to e-mail the company first, asking for permission to look through his posts and photos, and comments and messages from friends.
Within two hours, she said, Facebook changed his password and locked her out.
“I wanted full and unobstructed access and they balked at that,” she told the Associated Press. “It was heartbreaking. I was a parent grasping at straws to get anything I could get.” After a two-year legal battle, Facebook granted her 10-months of access before removing his account completely.
That brings up difficult questions. Would Loren want his mom to see the profile? Or are there posts he’d want to hide from her? But, most importantly, who gets that data when we pass away? Just like the serious nature of death itself, questions about digital assets seem simple at first, but upon deeper digging, they’re increasingly complex.
Surprisingly, little legal framework governs how our data is distributed, and often that leads to significant personal and monetary ramifications. One simple solution, though, is to include passwords as part of our wills, stipulating who, if anyone, gains access after our death.
“This will be helpful to people who are thinking about issues not only of inheritance but planning,” Jonathan Ezor, professor of law and technology at Touro Law Center in Huntington, New York, told the Associated Press. “When one family member tells another where the important paperwork is, the will, safe deposit box key, etc., the list of passwords is going to be added to that.”
Wills often consider property, jewelry, cars and cash in the bank, but increasingly, intangible digital assets should be taken into consideration.
“Virtually no law regulates what happens to a person’s online existence after his or her death,” Jason Mazzone, a law professor at the University of Illinois, wrote in a report, “Facebook’s Afterlife.” “This is true even though individuals have privacy and copyright interests in materials they post to social networking sites.”
When there is no stipulation in the will, where does the moral obligation lie?
Facebook said it is protecting members by refusing to release data without prior permission. But what if profiles have important information? Internet companies routinely grant access to law enforcement, and agencies like the FBI and CIA. Why can they do what seems to be a right to grieving families?
Mazzone said the responsibility of safeguarding digital assets shouldn’t be with the sites, but instead, given to federal agencies, who step in to properly bequeath the assets of the deceased. The U.S. government needs to take the lead in regulating social sites, he continued, by giving people the power to choose what happens to their data in the event of their deaths.
Lawmakers are taking notice of this legal gray area. Last year, Oklahoma passed legislation requiring social sites like Facebook to grant access to friends and family. Nebraska and Oregon are considering similar laws, as well.
But states would find it difficult to set up a legal framework that adequately regulates Facebook, Mazzone added, since the site not only operates across the U.S., but all over the world. Regulators wouldn’t have the broad authority to govern the wide range of issues upon death, either.
“We have to turn to the federal government,” he said, adding that who gets our digital assets when we pass is still murky at best. If you can’t — or don’t want to — wait for regulation, there are a few tasks you can take to make sure your data is seamlessly transferred to your heirs.
Wills handle the distribution of financial assets, so you probably won’t need a separate document for online monetary access — but for non-financial accounts, you need to take precautions. The simple solution is simply to write logins and passwords in a notebook — making it tangible — and then firmly weave it in the fabric of your will.
With the success of iTunes and the Kindle, as well as the ubiquitous nature of smartphones and tablets, you can collect vast amounts of media without ever leaving the computer. Those collections, often times, have value, too.
A study, commissioned by cloud provider Rackspace, found that over half of U.K. citizens held “treasured possessions” in the form of digital media, for an estimated digital inheritance of more than $37 billion worth of books, music, movies, shows and photos that could be potentially lost forever.
As we rely more heavily on devices to save and share data, future generations are likely to inherit passwords or even a digital estate plan, upon our deaths.
What’s a digital estate plan? It’s a document that lays out your digital assets, including online banking and brokerage accounts, purchasing and download destinations like Amazon, iTunes and Netflix and social media like Facebook, Flickr and Twitter. It gives you an extra measure of security, knowing that your directions are carried out as you like.
Facebook receives over 300 million photo uploads a month, and when you think about your digital life — whether it is stored on a device or in the cloud — you begin to see what those digital assets include.
The first step is to take an inventory. That starts with Facebook, Twitter, LinkedIn and any blogs or websites you own. Then, consider e-mail access, retail accounts and apps from stores like iTunes, eBay and Amazon, music sites like Pandora, photo-sharing sites like Flickr and YouTube. Don’t forget the airline frequent flier accounts, too — those miles are worth something. And, of course, there are data storage repositories like Google Docs. Basically, anything online may have value.
Create a list of all those accounts and their passwords. But they’re only as good as they are recent, so update them, at least once a year, especially when you change a password or open or close an account.
With the list in hand, create a to-do list outlining how you want it handled. Some ideas to consider include whether you want an account deactivated or to stay online. You can also decide if you want to leave a last post, or if you want prints of Flickr photos or a series of online books left to family members.
Then, find a safe place to store that highly-confidential information. One option is to keep the list in a safe deposit box at your bank. Or you can put them on a secure site, like Digital Beyond, an online service list that encrypts and stores it in one place. Or, you can just give the list to a trusted person, like your spouse, child, friend or someone you name as a digital executor, which carries out your digital estate plan. The role should be named in your will, giving him or her power to meet your end-of-life requests.
If you want any content posted online upon your death, be sure to add the details — how and when it should be handled — for the digital executor. But those wishes can come in conflict with the terms of service on digital media accounts, as Mazzone noted, which can take precedence over state laws.
Despite all the efforts, your last wishes can still run into complications, since digital assets are often stored on different sites with varying policies.
In general, Facebook won’t grant access to an account other than the owner or, possibly, the digital executor, if you’ve given permission to enter the username and password. The site outlines two outcomes in the event of death. Either, it can “memorialize” a profile, so friends and family can still see post and read the wall, but not login or find the deceased in search. Or, it can deactivate the account at the request of the family.
Policies vary from site to site and, as true in legal matters, the devil is in the details.
Twitter process is just as complicated. First, you need to fax copies of the death certificate and government-issued identification, like a driver’s license, then a signed, notarized statement and either a link to an online obituary or a copy of the obituary from a local paper.
To access a YouTube account after a death, you must send a copy of the death certificate and a copy of a document saying you have power of attorney over the account.
Google will only grant you access to Gmail “in rare cases.” To request access, family members must send a copy of the death certificate and a government-issued ID. But even then, the company doesn’t promise it will let anyone into the e-mail account.
When Justin Ellsworth died fighting in Iraq, his father John, a police sergeant, asked Yahoo for access to his e-mail account. Yahoo denied his request, saying it has a duty to protect the privacy of his son, even after death.
“The commitment we’ve made to every person who signs up for a Yahoo Mail account is to treat their e-mail as a private communication and to treat the content of their messages as confidential,” Mary Osako, a Yahoo spokeswoman, told the Telegraph.
The stand-off raises legal questions as to who is the gatekeeper of our digital assets will be. Experts are pushing for legal remedies, but the very personal nature of the decisions means you need to plan to pass digital assets in the event of the one certainty we all face: death.
With so many of our dreams, desires and private interests collected and stored online, the value of those bits only increases as our lives become more intertwined with the Web. More than just an occasional posting, social profiles are, for many, the virtual equivalent of a diary, photo album and time capsule. In the future, as more assets become digitized, those sites will hold increasingly valuable commercial assets, as well.
I find comfort knowing photos of friends are just one click away. But I ask myself: do I want my mother or grandmother to read every private message and see every embarrassing photo I post? I can’t help but cringe just a little. ♦
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