Who owns a person’s digital and online data when they die?

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Apple recently made national news following their misunderstanding of an estate related query from one of their customers in the UK.

A son inherited his mother’s iPad device and he appealed to the manufacturer to help him unlock it.  The company asked for a series of legal steps to be undertaken and documents to be provided with the request as their concern was to protect the account information, data and content of the original owner.

When the company realised that the son only wanted to use the device and for it to be returned to its factory settings, that is to say, wiped clean of its previous owner’s accounts, data and history, it duly complied and fulfilled the request.

This news story highlighted that online data and accounts do not automatically have the same status as we associate with traditional or fixed assets that form part of an estate. In this case, while the iPad as a device was seen as transferable from person to person, the data and software contained within it was not and may not have been, even if wishes regarding it had been explicitly outlined in a will.

Who actually owns digital assets is a key yet unclear issue in today’s estate and legacy planning. There was a hoax story a while ago in which Bruce Willis was suing Apple because he wouldn’t be able to pass his extensive iTunes collection on to his children when he died. The story was bogus but as Paul Gordon, Associate for Finlaysons, a national law firm in Australia points out, the issue is real.

“Often when you ‘buy’ music online what you are actually acquiring is a licence to listen to it, rather than buying the song itself,” Gordon points out. “That licence may come with restrictions and may not be passed onto your next of kin when you die (i.e. a ‘personal’ contract). These issues aren’t going to go away and I’m sure will come before the courts in the coming years.”

In a previous post, I’ve mentioned how people who have lost relatives or friends often have a drive to find out more about them, including their digital lives. While this latest case with Apple made headlines, it’s not an uncommon event. Digital providers will not just hand over access to personal data or information of the deceased unless there’s a legal requirement to do so as their position is to defend the privacy of the account holder, in death as in life.

Damin Murdock, Principal Lawyer of the MurdockCheng Legal Practice based in Sydney suggests that when writing up a will, individuals remove any ambiguity about how they want their digital information dealt with upon their death.

“I always recommend my clients to have a list of all bank accounts, passwords, PIN numbers and so forth with respect to financial institutions,” Murdock says.

“The same should apply for digital accounts. Next time you see a lawyer to update your Will, you should ask that lawyer to help you include your digital accounts, usernames and passwords. They can also work with you to provide for all intellectual property rights contained in each asset to be transferred to the respective beneficiary. Lastly, you can waive your rights to privacy so your Executor can gain access to your accounts and deal with them in accordance with your wishes (if this is what you really want).”

Gordon concurs and doesn’t anticipate changes in legislation to digital and online asset ownership anytime soon.

“In the US, several states have passed laws which deal with access to social media accounts, allowing the executor to take control after death. This is slowly creeping across the States but is yet to appear in Australia.”

He agrees that it is important to consider what will happen after you die and make sure it is well documented, ideally in a will, but also known amongst family members.

“Like a lot of these things, people often put them off as it means facing up to their own mortality. But it is important to do to save your loved ones from having to go through difficult and complex legal processes to get access to your online assets.”

What happens to Google email & online information when someone dies?

When people lose someone close to them, they frequently seek to find out more about what they were thinking or doing before they died. It’s as though they are trying to get a complete sense of the person and how they related to everyone else and the world around them.

Accessing secure information such as email is one way that mourners have sought to do this. However until recently, Google has restricted the ability of family members to see account information of the relatives who have died. It has required a legal process. The company has stated that their focus is to consider the privacy of users who sign up to their services – whether living or dead.

This changed in April 2013 when Google announced that their users are now able to nominate a next of kin or someone close to them which allows them access their account data if the account has been inactive for a period of three or more months. It’s called Google Inactive Manager. This will potentially be an enormous comfort for families trying to delve into their loved ones’ histories, sparking memories as well as a greater understanding of who they were. But what are the consequences? Could it in fact open Pandora’s box?

Why family members may want access to your emails and information

Earlier this year, my folks and I visited an army barracks in Catterick, UK to see some soldiers that my brother, DBS, helped to recruit to his Battalion. It was a good day, meeting some of the officers that he served with and finding out more about the customs, traditions and the way of life that he became part of.

Chatting with one of the officers over lunch, he told me that one of the most common questions that families ask when dealing with the news that they have lost someone while on active duty is “did he or she receive my parcel?” They want to know if their son, daughter, spouse or sibling knew that they were in their thoughts and were loved. Even if the recipient hadn’t had a chance to consume or open the package, their families are relieved and grateful if they know it was received. The gift symbolises their act of thinking about and loving them.

I was immediately struck by this conversation and could relate to what the offer had said. When I was informed of my brother’s death, my first response was “did he know that I loved him?” not long followed by “but I haven’t sent him his parcel,” a box of goodies that I’d bought a few days prior but hadn’t yet mailed.  It is a deeply held regret.

By contrast, I knew that my brother had thought of me. Two days later a postcard arrived from him that had taken some time to arrive from overseas, telling me not to worry and that he and his boys were well trained and prepared. He would see me soon. I could hear his voice as I read it and I felt a combination of being elated because I had received his thoughtful message and devastated because its timing was like a punch in the stomach.

I had sent DBS several emails in the month prior to his death to his Google gmail account. However, because of the nature of his work, I wasn’t sure that he had received them. He hadn’t replied. Army representatives at his repatriation and funeral, tried to assure me that he may have read them. “Camps often have internet”, they said. “Perhaps he was able to check into his account between duties”.

It wasn’t something that I was able to find out definitively from Google though. Initial enquiries by the MOD (Military of Defence) and ourselves to access his account were rebutted.

DBS was old fashioned in his approach to communicating with friends. He wrote pen on paper letters and mailed them to friends and family. By contrast, I preferred online forms of communication such as email and social and now believe as a result, that a significant period of my personal history has been lost.

By committing his words down on a card, I had a record of his thoughts for me. They were there in black and white. In my initial stages of grief, not knowing whether or not he had received my correspondence meant I had no guarantee — for a while — that he knew mine for him.

Respecting someone’s privacy while managing a digital estate

In military life, it’s a common ritual to send parcels and mail to men and women in the field. Increasingly though in our digital age, emails and notes through social networking platforms have primarily become our means of communicating, symbols if you like, that convey we’re thinking of others. Given this trend, it’s no wonder that we want to see these sent and received messages from behind a username and password.

In an earlier post, I mentioned how our family wanted to respect DBS’s privacy when handling data stored on his laptop with our desire to find out more about him. We did this by asking a third party to look through its contents, separating the information he would have wanted us to see from the notes and conversations that he would likely preferred we didn’t.

We would have applied the same practice to his email handling if we had been allowed to. This is certainly something I would recommend to families going through this experience of looking through email data of someone who has died, whether they access this information via the Google Inactive Manager or have obtained the right to read it through as the result of a legal process.

Being able to access a deceased person’s Google account data will likely be beneficial when managing their estate if gmail is their principal personal email account. For instance, resetting unknown passwords to 3rd party services such as iTunes, online banking, other social networking accounts is largely done via email.

There are also potential downsides to reading through someone’s private history and relationships. By looking through these archives, you are likely to become privy to a world inhabited by all kinds of private conversations. People often have secret lives, or have done things or have feelings that the people closest them may not know about. Even if this is not the case, online conversations can easily be misinterpreted.

Google Inactive Manager – features & things to consider when setting this service up

Things to consider when setting up Google Inactive Manager

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Google Inactive Manager is a recent introduction by Google to allow account holders to share their email and data with a nominated next of kin or friends after they have died or have stopped using Google services. A previous post looks at the pros and cons of using Google Inactive Manager and why you might want to do so. Here are some additional things to think about when setting this up this function…

Google’s decision to make a user’s private data available to people they have nominated is a positive one, especially if users are considerate in how they manage their settings, balancing their privacy v. providing information that would be practical or of comfort in some way, to their friends and relatives.

Having trialled this feature recently, here are some considerations if you decide to take advantage of this function.

Google Inactive Manager allows you to decide what Google features and data your next of kin/family members/friends can download in the event of your death.

Think about what you want to share. You may want to reveal data from your blog or Google+ circles to those you’ve nominated but not your email. When signing up, there’s a full checkbox list of Google features. Just check the information areas that you would like to disclose.

With this kind of digital estate planning, tell your closest kin what you are planning to do and what information you’ve nominated. This way you can discuss what your decision means and there are no surprises later in the event that something happens to you. On a purely practical note, your Google account needs to be inactive for at least three months before your nominated party can download your data. Discussing the steps that you have taken with them means that they may avoid running around in administrative or legal circles trying to obtain this account information in the meantime.

Google Inactive Manager only applies to gmail accounts – i.e. your nameorxxxx@ gmail.com

Email accounts hosted by Google but which are instead Gmail accounts with Google Apps (for instance, a business email address), are not supported by this service. For a Google Apps account, you’ll need to consider an alternative means of sharing data, for instance by setting up someone you trust as an admin on your account. If you have set up multiple personal Gmail accounts (i.e. name@gmail.com) you can set up Google Inactive Manager for each of these.

Google Inactive Manager will set into action if you stop using Google and don’t make the service inactive again.

It’s important to check in and update this service regularly to ensure that it is reflective of your digital afterlife wishes.  Your next of kin or the friends you want to nominate may change over time as may the level and type of information you want to share.

You can choose more than one person with whom you share your data. It’s not immediately obvious but if you wish to change the Google information that your previously nominated friends/family can download, click on the edit symbol (the pencil) next to their name. There’s also the option of deleting their access status if you change your mind later.

Online service providers change and go out of business as I’ve written about before. Google’s Gmail is showing no signs of abating, however, if you do decide to use another email service and discontinue using Gmail, make sure you deactivate Google Inactive Manager otherwise you’ll be sharing information before it’s time. A false alarm would be awkward, upsetting… and have privacy as well as security implications.

Google Inactive Manager offers the option for you to provide a posthumous message to your closest friends and family

There are lots of services that will charge a fee for you to send a personalised message to loved ones after your death.

When you set up Google Inactive Manager and nominate the family and friends you would like to share your email or other Google data with, you are able to include a personalised message for each nominee which they will receive once the service is activated. It’s free and part of the opt-in process.

While Google Inactive Manager serves a practical purpose, use this message to say something thoughtful. It really will make a difference.

Resting in Peace, Facebook-style

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Following on from a recent series of posts on Facebook memorialisation, Nicola Wright asks the tough questions – what would you like to see happen to your Facebook account after you’re gone? A useful look at things to consider when planning a digital afterlife…

Have you ever had the experience of seeing the Facebook profile of somebody who has died popping up on your home page with a message asking you to reconnect with that person? Or perhaps it was an item in your newsfeed proclaiming that such-and-such likes a certain page? It is precisely these kinds of dissonant experiences that led to Facebook changing their policy on deceased user accounts to allow for memorialisation of Facebook profiles. By memorialising a profile, it is changed so that it no longer appears in community or interaction suggestions and only existing friends can search for and interact with the profile. The bereaved also have the option to delete the profile completely if that is what they would prefer to do, so problem solved right?

Not exactly.  Although memorialisation of deceased user profiles of Facebook is hugely popular – approximately 3 million were estimated to exist at the end of 2012 – they have the potential to create further hurt and pain for friends and family due to a number of factors. Who for example has the authority to make the decision about whether or not a profile is memorialised or deleted completely? If the deceased person was married then perhaps it would be their spouse? What if the decision they make is upsetting to other family members – do they have recourse to take action against the decisions? Presumably Facebook assume the executor of the estate has the final say based on the documentation they ask for when an account is memorialised, but what if there is no official executor?

Once an account has been memorialised, the bereaved are then faced with the task of ‘impression management’, that is, ensuring that comments posted on the profile aren’t offensive, insensitive or even overly morose or sentimental. Such a task can seem like a burden for some people and decisions about which comments are appropriate, for example, are based on subjective perceptions about what is being said and by whom. Furthermore, the person in charge of impression management of the profile has no ability to clean up the profile in any way beyond moderating comments posted to the wall.

How do you feel about your Facebook profile being memorialised after you die? Or would you want it deleted completely? If your profile is memorialised whom would you want ‘in charge’ of what comments were deemed to be acceptable? If you died tomorrow is there anything on your profile that you wish wasn’t there and that you wouldn’t want as part of your online memorial? For the sake of those left behind, you may want to start think about making your preferences known.

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Nicola Wright is an e-commerce businesswoman and blogs at http://nicolawright.com and http://worryfreelife.net.

The pen v. the keyboard and privacy in death

Digital afterlife_ estate planning &issues & privacy

A few weeks after my brother’s death, Mum and Dad received eight large cardboard boxes of his personal effects from where he was stationed in Afghanistan as well as from his UK base living quarters. His laptop was included amongst these.

We had and still have an insatiable desire to find out more about him, piecing together strands of his life story like a jigsaw puzzle as we look through old photos and have conversations with his friends.

Our curiosity extended to his laptop but at the same time, we felt uncertain about whether we should look into its contents. The existence of a username and password on a laptop changes the way that you feel about accessing someone’s information contained within, whether they are alive or not. It’s generally considered taboo.

We wouldn’t have thought less of him, regardless of (almost) anything we discovered.  Our concern was though, would he have wanted his family or friends to know what was beyond his screensaver? He was rigorous about changing passwords frequently.

Despite our initial reticence, our solution was to ask an acquaintance who didn’t know him to crack into and look through the laptop’s content, deciphering what he might have wanted to share with family or friends and what he was more likely to want to remain private. That way, conversations, photos, old internet searches, notes and chat via apps such as WhatApp that he may have wanted to stay confidential, remained confidential.

It seemed to be a good compromise.  We could continue to find out more about my brother’s adventures through previewed items such as photos or snapshots of his most recent selections in music and movies via download histories or databases. Meanwhile, we felt he kept his dignity.

I considered it a straightforward process and thought that would be the end of the matter.  That is until over time, more and more belongings were unpacked and we discovered his diaries.

My brother was a meticulous note taker and asides from the occasional lapse, a writer of regular diary entries.  He had notebooks that came back from Afghanistan, his various postings as well as journals from his London work life and school days. As soon as we discovered these, I realised we had assessed his digital memoires very differently from the ones he jotted down on paper.

He wrote several online notes and entries on his laptop, usually in note taking programs or in word documents. Initially I felt that we should avoid or wipe these, perhaps because in my mind they seemed off limits and were less structured. By comparison, it hadn’t occurred to me that we should destroy his penmanship.

The online entries fortunately survived and both laptop and handwritten entries remain mostly unread.  But a conundrum remains.

Currently I’m contemplating whether or not it’s okay to read a person’s private thoughts when they are gone regardless of where they are written.

Diaries are often read and published post-mortem. In an informal poll with friends and family, their response tends to be that it is a question of personal choice whether or not you read the inner thoughts of someone close when they’ve gone.

Not having spoken with him about his views on the matter and in the absence of any last wish guidance, my opinion wavers regularly. However, whatever the outcome, his thoughts from the laptop will have equal weight.

Planning and managing a digital afterlife

Planning & managing digital death; photo credit Thomas Edmondston-Low

Towards the end of 2012, my younger brother was killed in Afghanistan.

While we knew the work he was doing was dangerous and acknowledged there was a risk he could be killed while serving, my parents and I didn’t entertain the possibility that he would.  This is the beginning of the rest of our lives without him.

My brother crammed so much into his 29 years, it’s hard to fathom how he managed it.  Our family continues to receive letters from friends and colleagues offering insights into his adventures, expanding our knowledge and repertoire of stories about him as a boy, a man and later, a soldier.

He lived and worked in five countries, spoke three languages and trained in places such as Nepal and Brunei. He was a keen sportsman, taking up competitive boxing and tributes on his social networks consistently referred to his talent with a cricket, rugby or hockey ball.

As well as being nauseatingly accomplished, he had a wicked sense of humour, was popular and remembered by friends and acquaintances as a gentleman. The nature of his job and the travel involved meant that he had friends all over the world. On the cold, grey, rainy day of his funeral in the North of England, I met people who had travelled from Australia, Germany, Japan, Kuwait, Japan, the Netherlands and the United States to say goodbye to him.

So why am I introducing you to my brother? Mostly because I’m so proud of him that I want everyone to know and remember him.  The initial shock experienced by family and friends is starting to subside and the occasions we’ve had to commemorate his life, have been and gone. Life goes on as updates on Facebook, Twitter, Instagram and LinkedIn illustrate and it has done for a while.

But in the midst of the emotional aftershocks, there are some aspects of his online life that our family has grappled with recently.  My brother has left behind a digital estate and we’re not sure how to administer it.

As well as the many physical mementos he’s left behind, he’s endowed us with an abundance of online memories and content. He applied common safeguards and was security conscious but didn’t consider what he wanted to happen to his digital footprint in the event of his death. This isn’t surprising. Discussions around this subject are not standard procedure during the execution of a will.

We’ve inherited his memories via data in the cloud, email accounts, social media and mobile accounts. While policies and administrative access are some of the items we’ve had to work out, we’re continuing to have philosophical and often difficult discussions on whether we’re managing his online presence in the right way, in the way he would have wanted.

Social plays a significant role in the grieving process for younger generations. With his active, social and well travelled lifestyle, the variety of his in-person relationships and social groups was mirrored in his online life. We’ve spent a lot of time talking about how to communicate online with grieving friends, the management of his communities and other general social media etiquette. Often we’ve received questions from people uncertain about appropriate online behaviour while mourning. Weeks after his death, one of my brother’s friends dropped me a line asking when it would be appropriate to update the tribute cover photo on her Facebook page that she posted at the time of his death.

I’ve also mentioned that I want people to remember my brother but how do you do this with  his digital profiles? In the famous words of Laurence Binyon, those who have fallen… “shall not grow old, as we that are left grow old. Age shall not weary them, nor the years condemn.” We have memorialised his online presence on Facebook but will we change the way he is remembered? At what point should we consider taking down his profile.  Or should we?

So, from time to time, I’m going to share some of the experiences that our family has had since we inherited my brother’s digital legacy and how we’ve resolved the discussions I’ve mentioned. At the same time, I hope to offer practical insights on what to think about in planning a digital will as well as some thoughts on etiquette around death in the digital age.

We don’t have the answers and are working through scenarios as they come up or we think about them. I hope you’ll share your experiences and thoughts here as I write about ours.

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