Death in a digital world

The other day I found myself signing up for yet another online profile. Now, it may be my line of work (or perhaps my general curiosity about how things work), but I would guess that I have accounts on anywhere from 10 to 20 social media sites, and that’s not even including online banking and bill pay accounts.

I can’t even remember my log-in information for many of them.

With passwords, profiles, photographs, friends and followers, like many people in my generation, a significant portion of my life has been documented online.

It truly is a different way of life, and I think many people will realize that their yearbooks, scrapbooks and photo albums are chronicled, not in a physical book or even a shoebox full of printed pictures, but in online albums – scattered across various platforms, and only visible to individuals whom with they choose to share them.

I followed my initial thought with wondering what would happen to all those friends, followers and photographs if I were to die tomorrow.

Some of my online albums are only visible to me. Would my friends and family even know that those digital memories existed? Would they even care?

I don’t know the answer, but I started doing some research.

According to Milwaukee attorneys Brian Gilpin and Jennifer Hannon, the issue of access can become a complicated battle between copyrights and contractual user agreements, and unfortunately (but perhaps not surprisingly), the law has not caught up with technology.

“It’s important to look at the content that is being uploaded and consider what those assets are when the individual is alive,” said Brian Gilpin, shareholder and chair of Milwaukee-based law firm Godfrey & Kahn’s Intellectual Property Practice Group. “It varies to a degree depending on what type of service it is, but for the most part every original thought, post or photograph you put in those spaces has a copyright attached to it. Part of the user agreement you ‘signed’ by clicking “Yes, I agree” gives Facebook, Twitter, LinkedIn or any other platform a perpetual non-exclusive license to host, copy and distribute that content as directed by you under your account. If you didn’t give Facebook or another platform the permission to do that, the company would be guilty of copyright infringement.”

The user agreement you sign allows the social media platform to provide the services they do; it gives them permission to host or “share” your content in the public realm.

“It’s important because by clicking ‘yes’ to that question, you are really entering into a licensing agreement with them so they can do something with that content,” Gilpin said.

The licensing agreement does not mean the user loses the right to the intellectual property though, Gilpin added.

“You still own the copyright; it’s just stored in their digital realm. So the issue is that just because the individual retains the intellectual property by law, doesn’t mean they have a physical copy of it say on their home computer or a hard drive,” Gilpin said.

For example, take the amateur photographer who uploads all the photographs she takes to Facebook, Flickr or even Shutterfly and does not bother to save those photographs anywhere else.

“Not only can their digital assets disappear in an instant if any of those online services discontinue that person’s account, but if that person passes away, and his or her family wants access to those accounts in order to preserve those assets, they might encounter a battle between whether copyright laws super cede contractual user agreements or vice versa,” Gilpin added.

In response to rising instances of cases involving digital asset control, some states have already proposed legislation that would override the user agreements to allow a person of the court to authorize someone to have access to a person’s digital assets, said Jennifer Hannon, shareholder and member of Godfrey & Kahn’s Estate Planning, Estate & Trust Administration Practice Group.

Tweeting from the grave?

The Uniform Law Commission has established a committee responsible for drafting a freestanding act that will help individual states work through these issues. The new act will grant fiduciary individuals with the authority to manage, distribute, copy, delete or access a person’s digital assets.

Facebook, as well as several other social media sites, have implemented new policies for individuals to provide proof of someone’s death and have their account switched to a memorial account, or deactivated at the request of a proven direct family member. A new Twitter App, LivesOn, recently emerged that can be set up to allow a person’s Twitter account to continue tweeting after a person’s death as if that person were still alive.

“I think initially most people weren’t thinking about death in relation to these profiles,” Gilpin said. “Many of them were created by people in their twenties, when death was the last thing on their mind. More and more these sites are emerging as something of true value, and the law is going to have to adjust. It is evident that people today use these platforms to document their lives; the sentimental value is becoming extremely apparent. These platforms need to be considered in the eyes of the law as an asset just like any other.”

According to Gilpin and Hannon, most cases involving gaining access to social media sites (and even email) currently involve younger individuals who have passed away. Both attorneys expect to see the law change more rapidly as these sites continue to appeal to an older generation of users.

What can you do now?

In recent years, some companies have emerged that offer individuals the ability to establish a sort of “digital will” that would allow them to designate a person to be responsible for executing a person’s individual wishes as it pertains to social networking platforms and profiles.

Two University of Wisconsin-Madison students, Jesse David and Nathan Lustig, founded Entrustet in 2009. The company, which was acquired by Switzerland-based SecureSafe in April 2012, allows users to set up and create a secure portfolio of online assets and allows them to designate heirs that will manage asset distribution and deletion after they pass away. The service, now provided as a division of SecureSafe, essentially allows users to decide the fate of their digital assets so family members don’t have to.

Obviously, such convenience comes at a cost, and Hannon cautions that in the realm of the law there really is no such thing as a “digital will,” and those wishes may not necessarily be carried out.

“The concern today is that a person’s traditional will may not govern a person’s digital assets the way we’d like them to,” Hannon said. “In theory, a service like those offered by SecureSafe would designate a personal representative and manager of the digital estate and everything would be fine, but it could also cause delays if the personal representative was different than the person named as trustee in their traditional will.”

According to Hannon, the user agreement signed by the individual users and the protections afforded companies like these under the Stored Communications Act would supercede the rights of the family members even if there were a digital will – because the law doesn’t “technically’ recognize them.

The 1986 Stored Communications Act protects companies such as Twitter and Facebook that provide online profiles and other services to users. Though outdated, the act provides “Fourth Amendment-like” protections to a person’s email and digital communications stored on the internet, and limits what these companies can legally do with a person’s information without a specific court order, which can be difficult to obtain under current law.

A bill that sought to update the Stored Communications Act to more adequately reflect today’s environment failed in the U.S. House Judiciary Committee in 2012.

Until the law catches up with the technology, Hannon and Gilpin recommend a few things to users.

First, before anything, it is important to remember that traditional estate documents eventually become public record. Therefore, leaving account and password information in your traditional will could be seriously detrimental in the end.

However, Gilpin does recommend that we should keep track of the digital assets we’d like to permanently keep, i.e. save digital images and content to a hard drive or a personal computer; not just on the Internet. We should also make known to our family members what accounts we have, and what we would like done with them after our passing.

He cautions however, that under the law, if we create a word document on our computer with our accounts and passwords and save it somewhere on our computer where family members can find it – that is technically a violation of the contract we agreed to when we signed up for those accounts.

Adjust indeed. Technology today moves fast. Not surprisingly, faster than our governing laws can adapt. Until the law changes though, you can bet I’ll be making some changes of my own to protect my digital assets. Will you?

Alysha Schertz is a former reporter at BizTimes Media. She is now a freelance writer.

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