Technologies for bequeathing digital assets: help or hindrance?

Lilian EdwardsProfessor of E-GovernanceUniversity of Strathclyde

and Edina Harbinja, PhD

candidate, University of Strathclyde

CDAS Conference, Bath, June 2012

Types of digital assets bequeathed?• SNS/Facebook profiles• Blog site posts -

literary/cultural heritage?• Photos eg Flickr – value plus

sentimental appeal• Ebay IDs and reputations,• Domain names –> entire

online businesses• Emails eg Gmail – all of above

plus access to deceased’s network

• Digital music, films, e-bks from iTunes, Amazon etc

• MMORPGS eg WoW – account, virtual currency, assets and avatar

• Online assets eg PayPal accounts

Observations• Such assets primarily associated with the young, but no longer the

case.. ?• 53% of UK population between 65-74 years, and 25% of 75 and

more year olds used the Internet in 2011 (Ofcom 2011)• Use of social networks and ICT increasingly associated with better

quality of life for older/senior people• The over 55s value their DAs more highly than other age group (The

Dying in a Digital Age study, 2011) with 83 per cent saying they have strong sentimental value and 89 per cent financial value

• “Saving money, keeping in touch and reducing feelings of isolation are just a few examples of how the internet can change lives for the better.” Martha Lane Fox , digital inclusion supremo

• Nearly 7 m over 55s in UK still not online (April 2012) -> Public drives to increase inclusion e.g. Silver Surfers Week 2001-2012 – also saves govt money e.g. e-governance, welfare, taxes etc online.

• But little advice on how to deal with digital assets in wills. And intestacy is the norm: more than 1/3 over 55s have not yet made a will (Guardian, 2010). 54% died in 2009 without a will.

Legal problems around wills and digital assets

• Legal issues: – Are these assets property? Can they be bequeathed? Who owns them?– What is role of intermediaries who control access and possibly ownership via

contract, e.g. Facebook, eBay, Spotify, Google? – Conflicts of law? Succession/ probate law is heavily local while DA s likely to be

hosted almost anywhere – controlled by what legal system?– Good practice and experience among solicitors in UK at very early stage– No specific legislation in UK as in Oklahoma, Ohio, Nevada etc. (7 US states so

far)• Practical issues:

– Getting access to assets may be under control of intermediary and determined by procedures which do not map to local laws, e.g. order of “heirs” on Facebook’s form

– No consistency re how sites treat assets after death; e.g. Yahoo! Policy forbids transfers to heirs after death (US marine case); FB allow memorialisation but not transfer; Spotify did not allow deletion of playlists.

– Best advise often to staple passwords to will, but usually transfer banned by terms and conditions -> possible termination a/c?

• Are digital wills – “technologies for bequeathing” - the solution??

Solutions? “Digital will” /“trust”/ digital executors / password locker sites

• Different business models:

― “digital wills”• Legacy locker - “the safe and secure way to pass access to your online accounts to

friends and loved ones”; “a digital safety deposit box” (In the event that someone submits a name as recently deceased, contacts all of his listed verifiers to confirm that the assets should be released and passed to nominated beneficiaries), also document backup and legacy letters

• Asset lock – “Secure electronic safe deposit box”; once a minimum number (set by a user) of recipients sign in and confirm death, the account will be unlocked after a time delay (which can be set by a person). The information and instructions saved will be sent to the family and friends (docs copies, final wishes, letters, instructions, secret info etc.)

― “digital asset trusts” – e.g. LifeEnsured, appointed as a successor trustee for assets listed in the trust doc (avoiding formalities of probate), “Irrevocable Trust Fund” - to carry out the post-death management of the on-line accounts, if financially unable to provide account management services

― email services, video messages, legacy websites etc. • Death switch – system prompts a password at a regular schedule to make sure a

person is alive, if no answer, supposes death or critical disablity and pre-scripted message automatically emailed to those named by the person

• If i die – Facebook application, leaving messages to facebook friends on death, min 3 trustees to confirm death

• BCelebrated - autobiographical legacy website, offers personalised memorial websites, protected private messages and emails, activated by chosen activators

• DeadSoci.al – extending social network profiles (Twitter, Google + and Facebook) after death, enables scheduling of messages that are distributed post-mortem

― offline and online services combined, e.g. digital executors (to try make it legally binding)

• Entrustet – account guardian (transfers accounts to heirs), account incinerator (deletes all accounts listed), lawyers directory (finds digital estate planning attorneys)

• My Digital Executor (UK) – involving 2 solicitors who keep email accounts, passwords and list of digital assets, assets transferred in the form of codicil

• Final Fling (UK) - advice on living an dying well (funerals, celebrations, bereavement, treasure trove, wills, advance decision, safe deposit box and essential documents; wills printed out, signed and witnessed)

Digital will - example

Post-mortem emailers

Digital executor - example

Possible benefits• In the absence of wills, people could easier express their wishes re e.g. funerals,

letters, memories etc. (no formalities required like for wills), but note possible conflicts with the law of intestacy if property involved

• Where wills exist, easier to update accounts, passwords, letters, etc. via these services, than changing the will with all the formalities required (again caution if property involved)

• Socialising and advising functions - encouraging people to think ahead, talk openly about death and dying; discuss and share views with members of communities; offer useful advice on funerals, celebrations, bereavement, wills, advance decisions, safe deposit boxes and essential documents

• Some combine offline and online services, such as making of a will and codicil, thus mitigating “non-binding effect”

• Rising awareness of the “digital assets inventory”, people usually disregard and underestimate (but 2011 study: UK's digital music collections worth more than £900 million, 45 per cent of people having digital music collections - value it at over £100 and 10 per cent at over £1,000)

• Perhaps the use of storage capacities of these services, without the actual transfer of DA outside probate? – to make probate easier?

Drawbacks / problems• “Ownership of any electronic rights related to the internet such as intellectual property,

domain names, or marketing affiliation agreements, cannot be granted or transferred through Legacy Locker.”; ”not a legal substitute for a Will, Trust, or Power of Attorney”; “not legally binding” – if digital assets are defined as property or other right, than what could be transferred through it? need for probate?

• Death Switch: “These Terms of Use and your use of the website shall be governed by the laws of the United States and the State of Texas without regard to its conflicts of laws principles.”, Bcelebrated – the laws of state of California, without the effect of choice of law; if i die - Israel jurisdiction – jurisdictional issues, services useful only for citizens of that particular state? Some do not recommend using it out of the US (LifeEnsured)

• Conflicts with terms of services of SNSs, other accounts and services (often non-transferrable after death)

• Publicity of the will – these services not public, but making accounts and passwords public?• Extension of our digital personalities – e.g. DeadSocial, privacy risks? Post-mortem profiles

deserve post-mortem protection of privacy?• Security breaches and identity thefts (are security measures employed adequate?)• Unstable market? Viable companies offering these services? Overstated their abilities? (see

Beyer and Griffin, Estate planning for digital assets, July 2011), thus not “reliable and permanent" form of evidence of testamentary intent (Langbein, 1975)

• Digital Assets Trust as a better solution? Jurisdiction issue (civil law countries)?

Post mortem privacy• Specific issue not yet addressed: we allow people to control their property after

death but not generally their privacy or reputation: in UK the dead have no rights in libel nor in data protection/ breach of confidence).cf Yahoo! US Marine case.

• Conflicts?: “Shame on Yahoo for not allowing this family to have access to their deceased son's e-mail. As a mother and wife I can only imagine the grief the family is feeling at a time like this. All the family wants is a small token of their son to hold on to. I would want everything and anything that I could have also. I can understand Yahoo's privacy policy concerning passwords, but there should be a way for families to retrieve e-mails.” But what if he was e.g. gay?

• Ask SNSs and other platforms to adopt practices to make bequeathing digital assets easier e.g. allow transfer passwords; allow nomination of “digital executor”.

• Extend data protection (and other?) rights to protect the personal data of the deceased. Transmit to heir? Lasting how long? Denmark, Estonia (30 years only) have DP rights after death; France privacy rights; Sweden “confidentiality”. DP Regulation reform does not harmonise. But do we want to recognise a right of post mortem privacy?

• Draft DP Reg does suggest right of interoperability for user personal data – could help? Mirrors/archives? Also right to forget – extend to will requests by the dead?

• But such measures require foresight – cf prevalence of intestacy.

Thank you

lilian.edwards@strath.ac.uk@lilianedwards

e.harbinja@strath.ac.uk@EdinaRl