digital life after death
TRANSCRIPT
DIGITAL
LIFE AFTER
DEATH
BETH COHN
LAURA ROGAL
JABURG|WILK
WWW.JABURGWILK.COM
MARICOPA COUNTY BAR
ASSOCIATION
MAY 8, 2014
IT ISN’T MORBID TO
DISCUSS WHAT HAPPENS
NEXT
“ACCORDING TO MOST STUDIES,
PEOPLE'S NUMBER ONE FEAR IS
PUBLIC SPEAKING. NUMBER TWO IS
DEATH.
DEATH IS NUMBER TWO! DOES THAT
SOUND RIGHT?
THIS MEANS TO THE AVERAGE
PERSON, IF YOU GO TO A FUNERAL,
YOU'RE BETTER OFF IN THE
CASKET THAN DOING THE EULOGY.”
JERRY SEINFELD
POLICY ISSUES
UNDERLYING
DIGITAL ACCESS
RIGHTS
BIG DATA (2013 STATS)
144 billion emails sent each day1
959 million websites2
87% of Americans use the internet3
1.23 billion monthly active Facebook users4
230 million monthly active Twitter users5
1.2 trillion Google searches1
1.6 exabytes of global mobile data traffic6
6 billion hours of video watched on YouTube each month7
556 million mobile daily active users on Facebook8
1 http://royal.pingdom.com/2013/01/16/internet-2012-in-numbers/, last visited May 8, 2013
2 Netcraft April 2014 survey; http://news.netcraft.com/archives/2014/04/02/april-2014-web-server-survey.html, last visited 4/11/14
3 The Web at 25 in the US, http://www.pewinternet.org/2014/02/27/the-web-at-25-in-the-u-s/, last visited 4/11/14
4 Facebook, http://newsroom.fb.com/company-info/, last visited 4/11/14
5 Twitter Form S-1, November 4, 2013, http://www.sec.gov/Archives/edgar/data/1418091/000119312513424260/d564001ds1a.htm, last visited 4/11/14
6 Cisco Visual Networking Index: Forecast and Methodology, 2012–2017, May 29, 2013,
http://www.cisco.com/en/US/solutions/collateral/ns341/ns525/ns537/ns705/ns827/white_paper_c11-
481360_ns827_Networking_Solutions_White_Paper.html, last visited 10/14/13
7 YouTube statistics, http://www.youtube.com/yt/press/statistics.html, last visited 4/11/14
8 Facebook, http://investor.fb.com/releasedetail.cfm?ReleaseID=821954, last visited 4/11/14
THE LAW IS LAGGING BEHIND
Only 7 states have specific laws to help fiduciaries deal with e-mail access
to online accounts: Connecticut, Idaho, Indiana, Nevada, Oklahoma, Rhode
Island, and Virginia
18 other states have pending legislation that address fiduciary access to
digital property (Arizona is not one of them)
IP OWNERSHIP ISSUES
Generally, Terms of Service does not transfer copyright
ownership in photographs and written content to the ISP
The user of the site retains full ownership of their content
Difficult to reconcile this ownership issue with ISP refusal
to grant access to these works after death
EMAIL ACCESS ISSUES
Electronic Communications Privacy Act (18 USC § 2510 et
seq.) protects electronic communications while in transit
Stored Communications Act (18 USC § 2701 et seq.)
protects access to stored electronic communications by
third parties
This includes emails and attachments, along with photos
and video
Computer Fraud and Abuse Act
End User Service Agreements
ONLINE IDENTITY THEFT
Identity theft is the top consumer complaint, with reported
consumer losses of over $1.6 billion in 2013
The FTC received over 290,000 reports of identity theft in
2013
Deceased individuals make for easy prey
FIDUCIARY ACCESS TO DIGITAL
ASSETS ACT (FADA)
National Conference of Commissions on Uniform State Laws (NCCUSL)
May 2011: proposal was submitted to the ULC for a uniform law to grant fiduciaries access to online accounts during incapacity or after death
January 2012: ULC appointed a study committee
July 2012: ULC appointed a drafting committee
November 2012: drafting committee meets for the first time
February 2013: first draft of the laws submitted
May 2013: comments received
July 2013: draft laws with comments submitted to National Conference of Commissioners on Uniform State Laws
November 2013: first official draft was submitted for comments
March 2014: Proposed Uniform Act was submitted to NCCUSL for review and comments
WHO IS THE ACCOUNT HOLDER?
Account Holder – An individual who entered into a TOS,
including a deceased individual who entered into the TOS
during the individual’s lifetime.
If Trustee is the Account Holder, FADA does not apply.
This should be fiduciary stepping into shoes of the “Account
Holder,” and the definition should include a fiduciary to
whom digital assets have been assigned or transferred.
WHAT IS PROTECTED?
Catalogue of electronic communications: record of person, time, date and electronic address.
Content of electronic communications: content of electronic communications (not public)
Digital Asset: electronic record (includes catalogue and content of electronic communication)
Electronic Communication: electronic record while in electronic storage
Record: Information inscribed in tangible medium stored in electronic or other medium and is retrievable
SHOULD THE TYPE OF
FIDUCIARY MATTER?
Wills Default rule grants access to digital assets, catalogues and contents to the Personal Representative (Section 4)
Trusts Default rule grants access to digital assets, catalogues and contents to the Trustee (Sec. 7)
POA Default rule grants access to digital assets and catalogues, but denies access to contents to Attorney-in-Fact unless expressly granted (Sec. 6)
Conservatorship Need court approval to access digital assets, catalogues and content (Section 5)
ACCESS UNDER FADA
DOES NOT APPLY IF:
TOSA prohibits
Federal law prohibits
Instrument prohibits Fiduciary to have access
Account Holder does not grant access under TOS
FIDUCIARY ACCESS TO DIGITAL
ASSETS ACT
To follow the legislation:
http://www.uniformlaws.org/Committee.aspx?title=Fiduciary%20
Access%20to%20Digital%20Assets OR
Email [email protected] with the subject line “Sign Up
to follow Fiduciary Access to Digital Assets committee”
EACH WEBSITE
HAS ITS OWN
POLICY ON
DIGITAL ACCESS
AFTER DEATH
Facebook will not provide login information to the account
of a deceased person, but will secure the account after it is
memorialized. The other option is deletion of the account.
https://www.facebook.com/help/www/265593773453448
(deletion)
Memorialization request allows a timeline to be
memorialized, which means that no one can log in to the
account and no new friends can be accepted
https://www.facebook.com/help/contact/305593649477238
Facebook encourages users to set up a Facebook Page or
a Group in order to better memorialize someone and allow
users to comment on the memories
https://www.facebook.com/help/www/104002523024878 (Page)
https://www.facebook.com/help/www/167970719931213
(Group)
Facebook will consider providing content from the
account of a deceased person, but the application
requires obtaining a court order
https://www.facebook.com/help/contact/398036060275245
Facebook gives users the option of downloading a
personal archive of Facebook photos, posts and
messages
If you obtain account access, this can be done before an
account is memorialized
https://www.facebook.com/help/www/131112897028467
Instagram was acquired by Facebook in September 2012
and put new policies in effect on January 19, 2013
They follow Facebook’s policies by requiring you to
submit a report of the deceased person’s account:
https://help.instagram.com/contact/396019703850735
They will not provide you with access to
the account, but will remove the account.
Contact Twitter about a deceased user only allows for the
account to be deactivated and requires somewhat
extensive documentation to prove the death
https://support.twitter.com/articles/87894-contacting-twitter-
about-a-deceased-user
Twitter will not provide account access to anyone
regardless of the relationship with the deceased
Inactive account policy: Accounts may be permanently
removed due to prolonged inactivity (6 months)
https://support.twitter.com/groups/56-policies-
violations/topics/236-twitter-rules-policies/articles/15362-
inactive-account-policy
Google Inactive Account Manager allows users to plan ahead
how data will be shared when the user dies
https://www.google.com/settings/u/0/account/inactive
If Inactive Account Manager is not used ahead of time,
only in rare circumstances will Google provide contents of
Gmail and other accounts after providing them with a
volume of information, including a death certificate and a
waiting period
https://support.google.com/mail/answer/14300?hl=en (Gmail)
http://support.google.com/accounts/bin/answer.py?hl=en&an
swer=2842525 (Google accounts)
YAHOO
Yahoo! accounts have no right of survivorship and are
non-transferable
The Terms of Service expressly state that any rights to a
Yahoo! account “terminate upon your death.”
http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html
Yahoo! will terminate and permanently delete any account
upon receipt of a death certificate
flickr is owned by Yahoo! and governed by Yahoo! terms
of service
FINANCIAL INSTITUTIONS
The same issues arise with online bank accounts held by a
single person as with physical bank accounts
Banks will not assume death until they receive written
notice and proof of death (see, e.g., Chase Deposit
Agreement at B(17)), and will not release funds without
verification of (1) death and (2) who is entitled to the funds
Contact information is buried on the website, but you
should be able to walk into a branch location if you need
answers
WHAT ABOUT APPS?
PLAN FOR THE
WORST, HOPE
FOR THE BEST
WHAT DEVICES WILL YOUR
EXECUTOR NEED PASSWORDS TO?
Smartphone
Home computer
Work computer
iPad/tablet
iPod/mp3 player
WIFI router
Flash drive
CREATE A DATABASE* OF LOGINS
Email (Google, Yahoo, Outlook)
Social media accounts (Facebook, Twitter, Pinterest, LinkedIn)
Blogs (Blogspot, Wordpress, Blogger)
Photography uploads (Flickr, Instagram, Tumblr)
Video uploads (YouTube, Vimeo)
Music (Pandora, iTunes, Spotify)
Cloud storage (Dropbox, RackSpace, Box)
Online bill pay (Credit cards, Utilities, City Services)
Bank accounts (Chase, Bank of America, Wells Fargo)
Brokerage accounts (Schwab, Etrade, TD Ameritrade)
Online store accounts (iTunes, Amazon, eBay, Etsy)
News sites (AZCentral, Forbes, WSJ)
Travel sites (Southwest, Starwood, Mariott, TripAdvisor)
Vehicle services (MVD)*this is not an inclusive list
LEAVE INSTRUCTIONS ON WHAT
TO DO WITH YOUR DIGITAL LIFE
What should the executors do with the digital accounts?
Should the executor make a death announcement using
social media?
Should the executor create a memorial site?
How will the executor communicate that the death was
tied to a person using an online pseudonym?
LEAVE INSTRUCTIONS ON WHAT
TO DO WITH YOUR DIGITAL LIFE
Include language in estate planning documents that give
the executor the following rights:
To access, manage and otherwise control any and all digital
and Internet based accounts and property rights, including
intellectual property rights, held in my name or any
pseudonym or log-in created by me. This right includes the
right to access all user names and passwords for all such
accounts, regardless of whether the terms of service or any
other agreement related to any such account indicates to the
contrary.
CONSIDER USING A PASSWORD
PROGRAM OR KEY
LastPass.com
agilebits.com/onepassword
keepass.info
ironkey.com
RoboForm.com
dashlane.com
Kaspersky Password Manager
*no endorsement implied by inclusion of a website on this slide
SECURE YOUR DIGITAL DATA
AfterSteps.com
SecureSafe.com
LegacyLocker.com
E-Z-safe.com
Recollect.com
CirrusLegacy.com
Library of Congress
*no endorsement implied by inclusion of a website on this slide
ARCHIVE EVERYTHING
Recollect.com – collects and archives all of your data, for
all time, and allows this data to be downloaded. Includes
content from Twitter, Instagram, Flickr, and Foursquare
SecureSafe.com – online storage for digital data.
Advertised to be “as safe as a Swiss bank vault.”
LegacyLocker.com – a “safe, secure repository for your
vital digital property that lets you grant access to online
assets for friends and loved ones in the event of loss,
death or disability.”
Library of Congress -
http://www.digitalpreservation.gov/personalarchiving/
*no endorsement implied by inclusion of a website on this slide
CHOOSE A MEMORIAL WEBSITE*
www.lifenaut.com
www.mywonderfullife.com
www.yourtribute.com
www.bcelebrated.com
www.legacy.com
www.gonetoosoon.org
www.1000memories.com
ifidie.net
*no endorsement implied by inclusion of a website on this slide
“LIFE IS
PLEASANT.
DEATH IS
PEACEFUL.
IT'S THE
TRANSITION
THAT'S
TROUBLESOME.”
ISAAC ASIMOV
