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Digital inheritance

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Digital inheritance is the passing down of digital assets to designated (or undesignated) beneficiaries after a person’s death as part of the estate of the deceased. The process includes understanding what digital assets exist and navigating the rights for heirs to access and use those digital assets after a person has died.

Digital media play an increasingly important role in life. The media in which a digital inheritance resides can be fully owned by the deceased or under the control of a proprietary service provider. In contrast with physical assets, digital assets are ephemeral and subject to constant change. There are currently many obstacles to successful digital inheritance processes, as estate laws and privacy laws are still catching up with the way modern life is spent in the digital realm. Issues center around user privacy, intellectual property rights, and the legal liability of online corporations. With the average person having numerous online accounts, digital inheritance has become a complex issue.

Large online service providers are increasingly offering options for users to make decisions on what happens to their data, and who can access it, in the event of their death.

Digital inheritance processes can encourage the preservation of digital content that provides both sentimental value to descendants of the deceased and informational value to society's digital heritage.

Overview

Digital inheritance is the passing down of digital assets to designated (or undesignated) beneficiaries after a person’s death as part of the estate of the deceased. What was traditionally passed down as physical assets – analog materials such as letters, financial paperwork, photographs, or books – now exist for many people almost entirely in digital form as email, online banking, digital photos, or e-books.[1] In contrast with physical assets, digital assets are ephemeral and subject to constant threats of data corruption, format obsolescence, or licensing restrictions and proprietary control.

Digital media can be physically owned, such as those stored on personal computers, hard drives, or optical discs, in which case the digital content exists on a format which can easily be bequeathed and passed down to heirs. A growing majority of digital content and interactions, however, are stored in an online environment and not owned by the individual but by the company providing the online service or product.[2] Examples of this include the online services provided by large corporations such as Google, Apple, Microsoft and Facebook. With the average person having 150 online accounts that require a password,[3] digital inheritance has become a complex legal and ethical issue. Legal conflicts surrounding digital inheritance center around questions of intellectual property rights, user privacy, and estate law.

Digital estate and digital assets

Main article: Digital assets

The term digital estate refers to the inheritable digital assets included in a person’s estate. This must include the digital media itself as well as the rights to have control over that media.[4] A person’s digital assets may be digital media that a person owns outright or has the rights to use according to a terms of service agreement. Assets may be stored either online or offline and include online accounts, any form of writing, images and other created static or dynamic content, or any digital content that has economic value. They may include sensitive information, such as banking and medical records, or shared information, such as social media contacts or forums. In contrast with physical assets, digital assets, particularly those stored online, are always vulnerable to change or deletion.[5]

Two principal issues arise over a person's digital estate. First, the inheritability of the digital content must be determined. Only digital content for which the deceased holds the copyright may be passed down to an inheritor. There is a distinction in law between full ownership and right-to-use licenses such as in software, digital music, film and books and there is legal precedent for denying resale or bequest of these.[6] Second, the heir or administrator of an estate must be able to access the content. This sometimes means navigating any online contracts or service providers’ terms of service agreements regarding their policies on user privacy and user death.[4][7]

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.[8]

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.[9] 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.[10] 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.[11]

Facebook will also delete a deceased user's profile when requested by a verified family member.[12] 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.[13]

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,[14] 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.[15]

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.[16]

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.[17]

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. [18]

From a legal point of view, digital inheritance requires that digital data forms part of the descendant's estate. Central to digital inheritance is the idea of universal succession. This concept dictates that each deceased person have a universal successor to inherit their entire estate, the purpose of which is to keep a deceased person's property (physical, intellectual, and digital) from becoming ownerless.[19] Such property rights as elements of the descendant's estate may be enshrined in laws, such as in Switzerland.[20] 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.[21] 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,[22] 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.[23]

See also

References

  1. ^ Anitei, A. (2017). Digital inheritance: Problems, cases, and solutions. International Conference Education and Creativity for a Knowledge-Based Society, 32-39. https://heinonline.org/HOL/P?h=hein.journals/icedvtykbs2017&i=32
  2. ^ Banta, N. M. (2014). Inherit the cloud: The role of private contracts in distributing or deleting digital assets at death. Fordham Law Review, 83(2), 799-854. https://heinonline.org/HOL/P?h=hein.journals/flr83&i=817
  3. ^ Polk, M. J. (2019). Be right back: Black Mirror and the importance of digital estate planning. South Carolina Lawyer, 31(1), 52-57. https://heinonline.org/HOL/P?h=hein.barjournals/sclwy0031&i=54
  4. ^ a b Ferrante, R. E. (2013). The relationship between digital assets and their transference at death: It's complicated. Loyola Journal of Public Interest Law, 15(1), 37-62. https://heinonline.org/HOL/P?h=hein.journals/loyjpubil15&i=47
  5. ^ Banta, N. M. (2014). Inherit the cloud: The role of private contracts in distributing or deleting digital assets at death. Fordham Law Review, 83(2), 799-854. https://heinonline.org/HOL/P?h=hein.journals/flr83&i=817
  6. ^ Masnick, M. (2010, September 13). Appeals court destroys first sale: You don't own your software anymore. Techdirt. https://www.techdirt.com/articles/20100912/12212110968.shtml
  7. ^ Bevan, K. (2014, July 23). Leaving a digital legacy. Moneywise. https://web.archive.org/web/20150402152830/http://www.moneywise.co.uk/cut-your-costs/family-life/leaving-digital-legacy
  8. ^ "Step by step expert guide to protecting yourself online before you die". Life Insurance Finder. Retrieved 2014-04-11.
  9. ^ "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.
  10. ^ "Who inherits your iTunes library?". Market Watch. 2013-07-23. Retrieved 2014-04-11.
  11. ^ "Contacting Twitter about a deceased user". Twitter Inc. Archived from the original on 2015-03-25. Retrieved 2014-04-11.
  12. ^ "How do I submit a special request for a deceased person's account on the site?". Facebook. Retrieved 2014-04-11.
  13. ^ "Memorialization Request". Facebook. Retrieved 2014-04-11.
  14. ^ "After Death, a Struggle for Their Digital Memories". Washington Post. 2005-02-03. Retrieved 2014-04-11.
  15. ^ "Deceased LinkedIn Member - Removing Profile". Retrieved 2016-01-21.
  16. ^ "After your final status update". Adam Ostrow on Ted Talks. Retrieved 2014-04-11.
  17. ^ Duffy, Jill (2012-10-08). "Get Organized: Passing on Your Passwords". PC Magazine. PCMag Digital Group. Retrieved 2015-03-18.
  18. ^ www.sans.org https://www.sans.org/security-awareness-training/resources/digital-inheritance. Retrieved 2020-11-02. {{cite web}}: Missing or empty |title= (help)
  19. ^ Mikk, Tiina; Sein, Karin (2018). "Digital Inheritance: Heirs' Right to Claim Access to Online Accounts under Estonian Law". Juridica International. 27: 117–128. doi:10.12697/JI.2018.27.12 – via HeinOnline.
  20. ^ "Bundesrecht". admin.ch. Retrieved 2013-08-01.
  21. ^ "Appeals Court Destroys First Sale; You Don't Own Your Software Anymore". TechDirt. 2010-09-13. Retrieved 2014-04-11.
  22. ^ "The Best Way To Utilize Technology For Memorials". The Digital Beyond. Retrieved 10 January 2016.
  23. ^ Zoe Kleinman (14 May 2016). "How to stay digital after you die". BBC News. Retrieved 29 June 2016.
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