“Death and taxes and childbirth! There’s never any convenient time for any of them.”
We don’t like to talk about death any more than we like to talk about taxes, or privacy, but there are important issues to consider, especially in the context of digital assets. The adage “you can’t take it with you” is as true for your data as it is for your material possessions.
Existential philosophy proposes that each of us is solely responsible for giving meaning to our lives – to find a way to live “authentically.” How can we continue, through our own consciousness, to create our values and determine such a meaning until our inevitable death – and even beyond to our digital afterlife? It may sound morbid to ponder who inherits our informational legacy, or even egotistical to want our digital presence to persist forever, but developing a plan for what happens to our data when we’re no longer around to safeguard it is part of a holistic privacy practice.
Like our view of the great beyond from the land of the living, there are many unanswered questions. Most center on unresolved legal and ethical issues. Who has ownership of your trove of emails and direct messages when you pass away? Who has domain over your posts and comments on your social media accounts? What about your history of online banking transactions and those photos stored in the cloud?
There’s also a burgeoning digital legacy and personal archiving industry vying to help us organize our online life when our real one is over. These services present innovative ways to enable our digital presence to continue into eternity.
What are our wishes?
Evidence suggests we give relatively little thought to our digital estate. A March 2013 Harris Poll confirms a lack of consumer awareness about digital assets, finding that “93 percent of Americans who have digital assets were unaware of or misinformed about what would happen to their digital assets should they die.”
A YouGov survey from the UK revealed that only 20% of respondents had considered what would happened to their online profiles after they died. When asked if they wanted to “live forever” online, 43% indicated they would like accounts closed down after they died, 16% thought accounts should remain available to view online forever with comments enabled, and 20% thought accounts should remain available, but closed for comments.
Billions globally have shared their life online. The lack of clear direction as to what to do with accounts after death has resulted in a vast number of accounts simply left behind. As of 2012, more than 30 million Facebook accounts alone belonged to dead people.
A legal look at your online afterlife
So where does the law in the U.S. stand? To date five states have enacted laws that relate to digital assets in the context of estate planning. The laws in Rhode Island and Connecticut are limited in scope to email accounts. An Indiana statute from 2007 includes “electronically stored documents of the deceased.” A 2010 statute from Oklahoma and a 2011 one from Idaho cover the broader notion of digital assets. Only five states have specific laws which deal with fiduciary access to online accounts of the deceased. Several of these laws are believed to be too limited in scope. (A map of states with estates laws regarding digital assets can be found here, as well as a list of the state laws.)
Who inherits your digital assets?
Our online profiles and assets do not automatically revert to the control of our heirs. The Uniform Law Commission, a nonprofit group of lawyers who draft and promote legislation for states to adopt, is currently trying to sort this out with model legislation called the Fiduciary Access to Digital Assets Act (FADA). Central questions involve how to balance rights of family members against privacy rights of the deceased under the Federal Privacy Act and other laws.
Advocates for the rights of family members who want access to the digital assets of the deceased favor the proposed rights under FADA. The goal is to give executors and other legal proxies access to files created by the deceased. The aim of FADA is to incorporate digital assets into probate and trust codes and “vest fiduciaries with at least the authority to manage and distribute digital assets, copy or delete digital assets, and access digital assets.” The Uniform Law Commission will vote on the proposed law in July. More details can be found in this interesting interview with Suzanne Brown Walsh, chair of FADA.
Social media policies on access, deletion and memorializing accounts
Many social media and email platforms have policies dealing with deactivating accounts and allowing access for family members of the deceased. In some cases, family and friends can “memorialize” a deceased person’s profile.
This infographic, “Preparing for Your Digital Afterlife” summarizes the various policies different companies have for accessing, memorializing, and managing accounts.
Memorializing is an interesting feature not all social platforms offer. Facebook allows friends and family to memorialize a deceased person’s profile or delete it. Access to the content of the profile requires a court order and will, or durable power of attorney.
Key features of memorialized accounts include:
• No one may log into a memorialized account.
• Memorialized accounts cannot be modified in any way. This includes adding or removing friends, modifying photos or deleting any pre-existing content posted by the person.
• Depending on the privacy settings of the deceased person’s account, friends can share memories on the memorialized Timeline.
• Anyone can send private messages to the deceased person.
• Content the deceased person shared (ex: photos, posts) remains on Facebook and is visible to the audience it was shared with.
• Memorialized Timelines don’t appear in public spaces such as in suggestions for “People You May Know” or birthday reminders.
• Groups solely belonging to a memorialized account will be able to select new admins, while Pages will be removed from Facebook.
In reviewing the various policies and procedures for managing online profiles one thing becomes clear: There’s no uniform process, and the options available to you across sites are not the same. It’s worth asking yourself what your wishes are in the context of different social platforms, and specifically indicating those desires to your loved ones one way or another. Consult your attorney if you care to designate your wishes as part of your estate planning.
Managing your digital eternity
The cloud’s great promise has long been that we can access our data anywhere, and that it will remain safely stored and available. Extending this concept beyond the scope of our natural lives has led to a wide range of startups to help you live forever online. Their services run the gamut of leaving specific instructions for loved ones, continuing your identity beyond your death, sharing your voice, messages, and even your DNA.
Assetlock: Their motto is “preserving your legacy” and they provide a digital safety box where users can upload their files, passwords and any instructions to be released to predetermined individuals upon their death.
Dead Man’s Switch: This service allows users to create a message to be sent after their death. Dead Man’s Switch asks that the users log in periodically to verify that they are still alive, and if they don’t log in after three email reminders, their post-death messages are sent.
Eternity Message: This service enables users to send pre written emails to loved ones at agreed upon intervals after death.
LifeNaut: This service allows you to upload a DNA sample, theoretically so your mind and genetic code are backed up in the cloud.
LIVESON: Designed to learn your “tweeting voice” and tweet after you’re dead, this service uses artificial intelligence algorithms to analyze your past tweets and create new tweets for the future.
SecureSafe: Based out of Switzerland, this company offers an online safe deposit box which allows you to put in your usernames, passwords and other important documents to share with an heir after death.
VoiceLibrary: This service allows you to record, save, and share the sound of your voice.
Finally, the eBook “Your Digital Afterlife” by Evan Carroll and John Romano contains recommendations for how to organize and manage your digital assets, how to create your “digital estate”, and how to protect your “digital legacy” after you’ve passed away. The free eBook “How-to Manage Your Digital Assets” is available for download here.
A complete list of topics and additional details about the contents of the book are available at Passare.com.
Preparing your digital legacy becomes part of your privacy practice
“Memento mori—remember death! These are important words. If we kept in mind that we will soon inevitably die, our lives would be completely different.”
Being aware of the privacy issues surrounding your death and your digital assets need not provoke fear, anxiety or melancholy. Everyone struggles with the fact of their mortality at some point, and regardless of who we are and what we may attain, the end will come to each of us eventually. We can have some piece of mind by preparing a plan for our data’s afterlife.
1. How do you want to be remembered?
2. How can you protect your privacy after your death?
3. To what degree would you like family and friends to have access to and control over your online accounts and digital assets?
The simple act of taking steps in the direction of mindful afterliving helps us live every day more mindfully.