Who owns your digital history in a future far, far away?

digital_data_digital_afterlife_digital_historyI’ve been speaking with a variety of researchers on the legal aspects around our digital accounts and what happens to them after we die. Often the discussion focuses on who is entitled to access a deceased person’s online account data – such as email, photos or documents – and the consensus is that it’s complicated.

Some platforms such as Google have started to allow users to nominate next of kin, family or friends to receive their personal information once their account becomes inactive. With the Uniform Fiduciary Access to Digital Assets Act approved in the US (July 2014), we may see a system where a personal representative of a deceased person’s estate has as much right to manage the digital assets of the deceased in the same way they would their tangible assets. Currently ownership of digital assets often remain with online services such as Facebook and Yahoo unless contested through the legal system by a next of kin.

While laws are catching up with digital and social technologies, Damian McCallig, a PhD candidate from the School of Law at National University of Ireland in Galway is curious to know what will happen to our data a generation or more after we die.

As he points out, current copyright laws in countries like the UK and Australia allow someone’s personal information to become available in the public domain several years after that individual has died. Records around births, deaths and marriages are accessible by researchers or family members interested in their genealogy or a previous generation’s history. Unpublished works such as diaries or letters can be published without the permission of their estate, as long as a certain period of time has passed since the author died. In the UK, this is seventy years, although there are specific exemptions.

“Currently a lot of today’s information that is relevant for the researchers and historians of the future is behind walls and owned by companies,” says McCallig. “For instance, Barack Obama has a Twitter account which will hold public tweets but also private messages which are gated. This information will be relevant from a historical and research point of view. Previously these kinds of notes would have become available after a set period of time. What copyright laws apply to this digital data managed by private organisations?”

McCallig believes that Facebook would have been alerted to the opportunity around its memorialised accounts (what is Facebook memorialisation?) when a father campaigned for a ‘look back’ video to be made for his son who died in 2012, attracting widespread support. He wonders if Facebook is assessing the commercial potential for its deceased accounts in the long term. Facebook’s main revenue stream comes from advertising, based on driving eyeballs to ad creative and sponsored posts. Memorialised Facebook accounts offer no value to marketers or monetisation options for the company in its current model.

While he’s not certain on how Facebook would commercialise these accounts, likely scenarios could include charging researchers, educational institutions, public information bodies and even individuals for access to archival information.

“Facebook is able to provide insights on how communities reacted to news and events within specific contexts or a particular point in time. It can detail emotional responses as well as online behaviour across timelines and networks,” says McCallig. “That’s of tremendous value to future historians.”

If this is the case, should these historical insights and archives be available freely to the public or remain in the hands of commercial companies? And if Facebook fails to survive, should there be a contingency plan to protect and share our histories with future generations?

What do you think?

Read more about Damian McCallig’s perspectives on Digital Remains or connect with him on Twitter.

 

 

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

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.”

Change to memorialisation + “Look Back” videos for Facebook deceased

Facebook made an announcement last week which shows that it has been giving some thought to how the social networking platform can best help people remember and celebrate their loved ones.

The first change they’ve introduced is that the Facebook memorialisation feature (what is memorialisation?) will continue to keep the account holder’s visibility features set as they were before the person died. Previously, only people set as ‘friends’ were able to see and interact with their page. So if a person decides that ‘friends’ and ‘friends of friends’ are able to their wall whilst living, these same groups of people will be able to see that person’s account after they have died.

Also… remember the Look Back video that has being doing the rounds on Facebook? This is the personalised video feature that shows users’ top content moments over the past ten years, launched to coincide with Facebook’s ten year anniversary. After one father’s appeal to Facebook for a Look Back video for his son who died in 2012, Facebook have made a request process available for others who have deceased friends and would like to view a Look Back video for them.  To apply and see a Look Back video for a deceased friend, the account must be memorialised and the requester must have ‘friend’ status. The requester will be sent a private link which cannot be shared.

Facebook have placed emphasis on the privacy of account holders and honouring this in life and in death. The company has also alluded to additional changes in upcoming months so that people can better establish how they want to be remembered on Facebook and what they want to leave behind for others. I’m hoping that they are considering a living will arrangement in the same way Google has set up its Google Inactive Manager.

How to give someone access to your Google email and data; manage your digital afterlife

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’s a step by step guide to help you this up this function…

Setting up Google Inactive Manager

Go to your Google homepage, click on your profile or avatar picture at the top right hand side of the page and select ‘Account’ after your name. You’ll need to be logged in to set up this feature.

Once in your ‘Account’ page, select the ‘Data tools’ option at the top of the page and then click on ‘Set up Inactive Google Manager’.

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You’ll be presented with the Google Inactive Manager dashboard. Click on ‘Set up’ to get started.

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First you’ll need to provide a mobile phone number. Click on the ‘Add mobile phone number’. The system is intuitive so it doesn’t matter if you type in a zero after the country code or leave spaces between numbers.

Once done, hit the ‘Send verification code’ button – it should send a code to your phone via SMS which consists of a series of numbers or letters and numbers. Add to the ‘Verify number’ box which appears and click ‘Confirm’.

You can also add another email address to receive updates or alerts at this point.

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Once you’ve provided your contact details, select a timeout period on the Google Inactive Manager homepage. This means the length of time that you leave your Google account inactive, i.e. the period during which you do not log into Google for email, search, Google+, Drive or any of the Google tools. The minimum period is 3 months, the maximum period is 18 months. Think of the feature you most commonly use on Google and base a time period around that.

Remember though, Google only knows that you’ve used your account if you have logged into your account. If you use Google search everyday but are not signed in then you check your email every six months which you have to sign in for, Google will register the six month email activity on your account but not the search.

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Next, select ‘Add trusted contact’. You can nominate up to 10 contacts who will have three months to download your data once the account is inactive. Here’s where you can enter the email details of the person(s) you nominate to receive your data. Check the ‘Share my data with this contact option’ to ensure that they are able to receive the data later. If there is someone that you don’t want to have access to your email or other Google data but would like to send them a message, you can add a note for them at this point which the recipient will receive when the timeout period has finished.

 add trusted contact

Select the Google data that you would like your nominated person(s) to download. As well as making sure your contact details are correct, you’ll need to verify the correct phone number for your nominated contact(s). You’ll also need to update your contact’s mobile phone if this changes over time so that they will be able to access your account once it has become inactive. You can pick and choose what your nominated contact(s) will be able to download and access.

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After hitting the ‘Next’ button, you’ll be taken to a page where you can leave a message for the person you’ve nominated to receive your Google data. While setting up Google Inactive Manager is practical, the message doesn’t have to be. It’s a good opportunity to leave a thoughtful message behind for someone who is grieving. What would they want to hear? Anything you want them to know? What you say could make a difference to them.

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Google Inactive Manager also allows you to set up an auto-response to incoming email once your Google account has become inactive.

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Lastly, you decide what happens to your Google account once your outlined actions have been completed. Would you like the account to be deleted? Google Inactive Manager includes this option which will also remove any public comments/data you have, for instance on YouTube or Google+.

opt_delete_google_account_digitalafterlife_deathOnce you’ve hit ‘Enable’, your Google settings are confirmed. Remember, you are able to update your settings at any point. Visit this earlier post on things to consider when setting up Google Inactive Manager.

Things to consider when setting up Google Inactive Manager

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.

The pen v. the keyboard and privacy in death

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.

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