On February 5th, 2014, John Berlin posted a 1½ minute clip on Youtube. In an emotional plea to Facebook founder, Mark Zuckerberg he asked to receive the one-minute “Look Back” presentation the company prepared for its subscribers on its 10-year anniversary. John wasn’t asking to see his own “Look Back”, but that of his son, Jessie, who passed away in January, 2012. Jessie hadn’t left his password behind, and the family couldn’t access his profile. Jessie’s digital record – including photographs taken since he’d opened his Facebook account – were no longer accessible, even to his family.
Since 2014, John’s video has been viewed more than three million times. With the attention it drew, Facebook granted his request.
Berlin’s stirring video spotlighted the increasingly-complicated, and mostly unresolved issue of Digital Assets at death. These assets are anything from your Facebook and LinkedIn presence to your on-line photo albums, Dropbox files, music and video collections. What happens to them when you die? Do they form part of your estate like your house, car, and other material possessions, or are they excluded and require special treatment under the law? If so, under which law? That of the country in which the deceased lived, or where the digital media is stored?
In most countries, including Israel, the issue is unclear. Combined with the Internet Companies’ terms of use, there’s every likelihood your Digital Assets will be lost forever. A legislative proposal in 2014 to declare Digital Assets part of your regular estate was put before the Knesset, but has not yet passed into law. Lawyers, legislators, internet companies, and security experts are grappling with the issue with increasing urgency.
Digital Assets – Regular Estate?
So, should Digital Assets be part of your regular estate? The answer isn’t that simple.
Email, for example, poses a host of legal problems by itself. Although correspondence created by the deceased is clearly his/her copyright and can pass to the heirs, what of the replies? Heirs cannot claim a right to the responses sent by the other side in an exchange. Indeed the writer may not wish anyone – in the absence of the deceased – to see the correspondence at all. They may have written something defamatory, or entrusted privileged information.
Photo storage on “the cloud” is another problem. With the exponential growth of digital cameras and mobile phones, billions of photos are now online. On the surface it would seem there’s no reason that photos shouldn’t be part of a deceased person’s estate. But what if he/she stored compromising or embarrassing images that he/she would never want anyone to see? Allowing blanket access to heirs could be very hurtful to survivors.
Consider the all-too-possible scenario of a lawyer/doctor/accountant’s laptop computer passing to his/her beneficiaries on death. The potential for a serious breach of client-professional privilege is a single click away.
Ownership of Digital Assets
Google, Flickr (owned by Yahoo), Instagram and others declare that data stored on their servers remains the property of the subscriber. However, they have separate rules about transferability, and access to that property after death. LinkedIn, for example, will not allow anyone access. Once they’ve closed the deceased’s account, no-one can see the data. Facebook will “memorialise” the deceased’s profile. Google allows living subscribers to set instructions to delete a dormant account – providing some control, at least, for our testamentary wishes. They will also “work with immediate family members… and in some circumstances… provide content from a deceased’s account.” They will not provide passwords to allow unbridled access to a deceased person’s account.
(Author’s note: since the writing of this article, Google now allows you to appoint trusted friends/family if your account becomes inactive. Facebook also facilitates appointment of a “legacy contact.”)
Yahoo, (including Flickr – where millions store their entire photo collection) clearly states:
Your Yahoo account is non-transferable and any rights to your Yahoo ID or contents within your account will be cancelled upon your death. If we receive a copy of a death certificate, the relevant account may be cancelled and all its contents permanently deleted.
Apple’s iCloud and iTunes are the same. iPhone and iPad users probably don’t know they can’t bequeath their content – even photos and documents they created themselves. Without a backup copy stored off-line, content may evaporate with the very cloud it’s stored in. Paid-for music and movies are lost forever; to back them up is breach of contract – and perhaps even illegal.
The fact that the deceased owned the data at his/her death – whether it’s self-created or licensed – does not mean it will be accessible to his/her heirs. Indeed, it’s usually the opposite.
Jurisdiction
Israel’s Inheritance Law says that domicile determines the court’s jurisdiction – but unfortunately it’s not that simple. Would the heirs of an Israeli author who saved his/her manuscript to Google Drive be able to use a Succession Order granted by an Israeli court to have the data released? Even if the foreign authorities accepted the Israeli court order, it would probably be only after protracted negotiations.
And with the big Internet companies being American, we assume they’re subject to US law. That’s not true either. For Israelis, your Yahoo account is governed by the laws of Ireland.
The legalities are complicated, involving inheritance law, intellectual property law, private international law, contract, and even company law, and there are many more questions than answers.
The lawyer laptop example above has been described as bequeathing the safe, but not the contents. Beneficiaries are entitled to the computer, but who will separate it from its content?
The digital age has disrupted so many industries and it’s rapidly making its way into testamentary law. Regular wills and the rules of intestate succession (the law applied when a person doesn’t leave a will) are no longer sufficient in the era of cloud computing and social media.
Digital Estate Planning
At the moment, in Israel, your Digital Assets are probably not part of your regular estate. By default, that makes them subject to the laws of intestate succession – an even more unsatisfactory position.
What then should a person do to make sure his/her Digital Assets are disposed of properly on death? Leaving a list of usernames and passwords may go some way to solving the problem, but this may expose private information to people who were not intended to see it. It could be argued too, that entry to a deceased’s account by a non-court-appointed individual is actually illegal.
In the absence of clear legal guidelines, the only answer is proper digital estate planning. People need to include Digital Assets in their wills in no less detail than tangible possessions. This will go part of the way, but if you want your Digital Estate to pass to your heirs, you must store local copies too.
The Young are not Excluded
Unfortunately, as John Berlin’s video illustrates, Digital Estate planning applies to young people even more than old. With most of their lives recorded on a cloud, if tragedy strikes, families can all-too-easily lose all their memories forever.
We’ve entered a new era with problems we’re only discovering. What’s already clear is that to benefit from the digital age, we need to take responsibility – even in death.
Author’s Note: Thanks to Vered Shavit who runs an excellent blog (in English and Hebrew) about Digital Assets on Death at this address.
Hi Mike,
Thanks for this post –
I hadn’t thought as deeply about this as you have… By adopting the philosophy that everything online is potentially public you surely can’t go wrong. At least this is what I tell my kids. As to whether they understand the enormity of the issue is another thing.
Re patient/client confidentiality, as far as I am aware, in the UK at least, all patient information would belong to the patient; If I died with patient information on my laptop (would have to be my work laptop, which is encrypted by work) that information governance would pass to the hospital. I guess if I had personal pictures on that laptop, I wouldn’t really have much of a claim on them.
Wouldn’t the same apply with lawyers? They shouldn’t be keeping client information which is confidential in the same, folder as family or personal information, the former requiring some form of encryption? If they don’t do this, I guess they would be in trouble if caught in life, but, if ‘Safe in heaven, dead’ as Kerouac says, there isn’t much anyone can do, except perhaps sue the estate??
There are two legal issues here. The first is privacy and the second is copyright / intellectual property.
1) Indeed, if a physical letter was left in your possession, the paper itself would pass to your heirs. It would be difficult, if not impossible, to prevent them from reading it and breaching any privacy. Email, on the other hand, is not just one letter, but may be many thousands, from many different sources. Consequently, much higher standards need to apply.
2) The copyright /intellectual property issue is quite different. If Einstein wrote you a letter in which he detailed his Quantum Theory, and that letter passed to your heirs, the intellectual property contained in the letter does not pass to them – it remains with Einstein. The same for emails. Any intellectual property contained in the correspondence remains with the originator.
Again, it’s the extent of the exposure that’s greater with email. Say a senior professor received email suggestions from hundreds of scientists outlining their theory about something. Each of these scientists retains the intellectual property in his/her suggestion. With so much intellectual property being bandied around, it’s in many peoples’ interest to exclude the professor’s email correspondence from his/her estate.