Digital inheritance

Digital inheritance is the process of handing over (personal) digital media in the form of digital assets and rights to (human) beneficiaries. The process includes understanding what digital assets and rights exist and dealing with them after a person has died.

Digital media play an increasingly important role in life. The media in which a digital inheritance resides can be owned by or independent of the deceased. In contrast with physical assets, digital assets are ephemeral and subject to constant change. Intellectual property and privacy, particularly post-mortem privacy, are additional factors. Digital inheritance may present a challenge for data heirs in its complexity and intricacy, and may have legal implications. With the average person having multiple online accounts, digital inheritance has become a complex issue.

Overview

Digital inheritance is the process of handing over (personal) digital media in the form of digital assets and rights to (human) beneficiaries. Digital media play an increasingly important role in life and digital inheritance is what is left behind when a person dies. The media in which a digital inheritance resides can be owned by or independent of the deceased. In the former category are personal computers, mobile phones and other devices, and in the latter category are the online corporations such as Google, Apple, Microsoft and Facebook. In between is a grey area of forums, blogs, personal websites and online banking. In contrast with physical assets, digital assets are ephemeral and subject to constant change. Intellectual property and privacy are additional factors. Digital inheritance may present a challenge for data heirs in its complexity and intricacy. With the average person having 25 online accounts,[1] digital inheritance has become a complex issue.

Digital estate

The term digital estate refers to digital media and rights that can be inherited. Digital assets are (in contrast to physical assets) more dynamic and ephemeral. When a person dies they leave behind a digital presence which can include online accounts, passwords, contracts, receipts, financial transactions, medical information or personal websites, and can involve banking, writing, images and social media. A digital estate is not only a person's online presence; it includes data stored digitally on personal technology such as a phone or computer.

Two principal issues arise over a person's digital estate: firstly, inheritability, those data or copyrights which belong to the deceased and can be inherited; secondly, access to the deceased person's digital estate by someone charged with dealing with it. A number of bodies have highlighted the difficulties that these and other issues may raise.[2][3][4]

Digital assets

Digital assets are those digital media that a person owns, or has rights to. They may include passwords, writing, images or other media, either online or offline. They may be sensitive, such as banking and medical information, or shared, such as with social media contacts or in forums. In contrast with physical assets, digital assets are always subject to change or deletion.

Data heir

A data heir is the person (or people) to whom a digital estate has been bequeathed or to whom rights have been assigned, either legally or informally. A data heir may be provided with clear instruction, may be faced with an un-sorted data flood with limited instructions, or may be left no instructions. Digital assets which involve contracts with service providers will have to be dealt with to prevent loss of access to data.

People's need to be able to pass on their digital assets has given rise to several companies that specialize in providing consumers with ways to allow their heirs to inherit their digital assets after they die.

Issues

Responsibility of benefactors

The practical approach to digital inheritance is to keep a regular backup of digital assets in a secure place and appoint a single person who will post-mortem deal with the assets. An up-to-date list of passwords to online accounts would be essential. One method of ensuring that a digital inheritance is handled legally and comprehensively is to use a digital estate planner.[5]

Contracts

Contracts with service providers may be automatically terminated (by the terms of service) when a customer dies. This may mean that there is no right for heirs to access that data.[6] This is compounded by the fact that many digital assets are only granted with non-transferable rights of use. For example, both Amazon and Apple only offer their digital products with single user rights.[7] This means that digital products bought through such services can only be used by the purchaser, and cannot be passed on.

Social media

Social media services have policies and processes to confirm the identity and death of a deceased user.

Twitter does not allow access to deceased user profiles. They will, however, deactivate an account for someone who is "authorized to act on the behalf of the estate or with a verified immediate family member of the deceased" provides the user's death certificate and their own government-issued ID.[8]

Facebook will also delete a deceased user's profile when requested by a verified family member.[9] The request needs to provide proof of death such as death certificate. Alternatively, Facebook profiles can be memorialised. For this option, the request needs to include a link to an online proof of death, such as an online obituary.[10]

Both Facebook and Twitter have been prey to hoax celebrity death announcements and memorial pages over the year, as well as being entangled in legal battles for the rights to access a departed loved one's social profiles,[11] leading to the need for official action and processes.

LinkedIn has a process for removing the profiles of deceased members. The request may be initiated by family members, co-workers, or other LinkedIn connections. Profile removal begins with an on-line request for selected information about the deceased including an on-line obituary or equivalent proof of death.[12]

Practicalities

Planning

The need for forward planning of a digital inheritance has been increasingly in the media, and includes deciding what digital assets are heritable, who should inherit them, how they should be notified and how this process should be achieved. The process may include online memorialization.[13]

Password vaults

There are several services that offer to keep multiple passwords, sending them to designated people after death. Some of these send the customer an email from time to time, prompting to confirm that that person is still alive, and failure to respond to multiple emails makes the service provider assume that the person is deceased, and will disclose the passwords as previously requested. A company may require two verifiers who both must confirm the death, as well as providing a death certificate, before any passwords will be disclosed.[14]

Digital inheritance service

There are services that facilitate passing social accounts and digital cryptocurrencies to the beneficiaries after one's passing. They allow users to connect their social accounts, file storage services, and bitcoin wallets to one "vault". The upside of such approach is that no additional transfer of assets is necessary since transfer is happening on the connected service provider's side, thus reducing risks to the minimum.

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, such as in Switzerland.[15] A digital estate may include outstanding debts and intellectual property rights as well as possession-based rights of the testator.

There is a distinction in law between ownership and right-to-use such as in software, digital music, film and books and there is legal precedent for denying resale or bequest of these.[16] Only original digital data, archived on a medium of the service provider, falls into the decedent's estate, as far as the testator has had access and the digital data is not cleared with the testator's death.

The question of whether digital assets are subject to the same rights as physical assets, and whether digital assets in the public domain can be exclusively inherited is moot.

Memorial

A digital estate memorial employs a combination of digital technology,[17] including online memorials, for the benefit of the descendant's estate using various forms of communication, data storage and messaging to continue the legacy of the deceased as years progress. This includes services designed to continue contact with descendants with instructions or greetings from the passed. Some organizations ensure that digital inheritance will be protected in the event new technology emerges over periods of generational succession. This would include new applications of the digital inheritance lifestream as technological systems develop.[18]

See also

References
  1. Rosen, Rebecca J. (3 May 2012). "The Government Would Like You to Write a 'Social Media Will'". The Atlantic. Retrieved 4 June 2013.
  2. "Leaving a ditigal legacy". Archived from the original on 2 April 2015. Retrieved 20 March 2015.
  3. "Warning over protecting online assets after death". BBC. 30 September 2014. Retrieved 20 March 2015.
  4. "Plea for people to create 'digital legacy' letter". BBC. 24 February 2015. Retrieved 20 March 2015.
  5. "Step by step expert guide to protecting yourself online before you die". Life Insurance Finder. Retrieved 2014-04-11.
  6. "Consiglio Nazionale del Notariato: Password, Credenziali e Successione Mortis Causa (in Italian)" (PDF). Archived from the original (PDF) on April 14, 2014. Retrieved 20 March 2015.
  7. "Who inherits your iTunes library?". Market Watch. 2013-07-23. Retrieved 2014-04-11.
  8. "Contacting Twitter about a deceased user". Twitter Inc. Archived from the original on 2015-03-25. Retrieved 2014-04-11.
  9. "How do I submit a special request for a deceased person's account on the site?". Facebook. Retrieved 2014-04-11.
  10. "Memorialization Request". Facebook. Retrieved 2014-04-11.
  11. "After Death, a Struggle for Their Digital Memories". Washington Post. 2005-02-03. Retrieved 2014-04-11.
  12. "Deceased LinkedIn Member - Removing Profile". Retrieved 2016-01-21.
  13. "After your final status update". Adam Ostrow on Ted Talks. Retrieved 2014-04-11.
  14. Duffy, Jill (2012-10-08). "Get Organized: Passing on Your Passwords". PC Magazine. PCMag Digital Group. Retrieved 2015-03-18.
  15. "Bundesrecht". admin.ch. Retrieved 2013-08-01.
  16. "Appeals Court Destroys First Sale; You Don't Own Your Software Anymore". TechDirt. 2010-09-13. Retrieved 2014-04-11.
  17. "The Best Way To Utilize Technology For Memorials". The Digital Beyond. Retrieved 10 January 2016.
  18. Zoe Kleinman (14 May 2016). "How to stay digital after you die". BBC News. Retrieved 29 June 2016.
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