What Happens To Your Online Persona When You Die?
Another area where the law has not caught up with technology.
In The New York Times, Thomas Fitzgerald discusses an issue that most people probably haven’t given much thought to, namely what happens to your online presence after you die:
Planning for control of your personal information after you die used to be as simple as telling someone about the desk drawer or the fireproof box or the safe deposit box at the local bank.
But in the era of smartphones and cloud computing services, that same stuff may be stored in digital formats on servers scattered across the globe. You may keep documents online or use email as a catchall for paperless receipts, insurance information or financial transactions. And don’t forget the photos, videos and musings left behind at social media sites like Facebook, Twitter, LinkedIn and Flickr.
So how do you make sure all that information — protected by who knows how many passwords — is handled the way you would like after you’re gone? Two words: Plan ahead.
Providers that store digital content are restricted in how they can disclose it to someone other than the account holder. Much of it is protected by privacy laws. And terms of service agreements for things like free email may prevent companies from disclosing that material to anyone without a court order.
“We are in a gray area right now where the technology has progressed faster than the laws,” said Laura E. Hoexter, an estate-planning lawyer at the law firm Helsell Fetterman in Seattle.
Some states have passed laws to address aspects of these issues. For example, a 2013 Virginia law makes it easier for family members to see content in cases of the death of a minor. And the Delaware Legislature just this week passed a bill that seeks to ease access to content.
The Uniform Law Commission, a nonprofit association that looks for ways to bring about uniformity in important areas of law, is also working on a law that could eventually apply to all states.
The commission wants to ease access to content while also honoring a user’s privacy wishes. It hopes all 50 states will adopt its proposal so a single set of guidelines would standardize the process for users, providers and heirs, said Suzanne Walsh, chairwoman of the committee drafting the law, called the Uniform Fiduciary Access to Digital Assets Act.
Ideally, of course, this is something that one could take care of easily. There’s not really any reason why someone could not make provisions regarding the various aspects of their online presence in their will, for example, and the easiest thing would be if there was a readily available list of passwords available for a loved one to access should the need arise. In reality, of course, we’re still at the point where dealing with one’s online presence as a part of estate planning is not something that is considered standard practice, although I am aware of some attorneys who practice in the field who at least bring the subject up when they are discussing the drafting of documents with a client. Additionally, people change passwords frequently for reasons ranging from security to personal preference so a list that was created in the past may not be valid when someone needs to use it. In such a situation, someone who wants to do something as simple as gain access to a loved one’s Twitter or Facebook page after they pass away often finds themselves in a difficult situation. Obviously, with the proper legal documents the process would be a lot easier.
As Fitzgerald notes, there are several solutions to this issue that have developed in the absence of law to cover the matter:
Google, for example, offers a tool to help its users deal with the problem. Called Inactive Account Manager, it allows you to designate up to 10 people to receive content from sources like your mail, documents or blogs. You may also choose to have content deleted after you have died.
When the account becomes inactive, your designees are notified and receive the content you chose to share. They do not receive a means of logging in to your account.
Some lawyers view Google’s planning tool as a model to emulate.
“Other companies haven’t started doing this yet, but I’m hopeful they will,” said James D. Lamm, an estate-planning lawyer at Gray Plant Mooty, a law firm in Minneapolis and the author of digitalpassing.com, a blog that tracks these issues.
Divulging your passwords is risky, of course, even to someone you trust. But there is no simple way to do this securely while ensuring your passwords are current.
Numerous online services offer features that can transfer passwords and other personal data after you die. PasswordBox, a password manager that hooks into your web browser, has a transfer feature called Legacy.SecureSafe, based in Zurich, offers a tool for transferring passwords.
Of course, putting information like that online exposes it to hackers, government snoops or even the unforeseen security bug.
Instead, you may choose to store passwords on your computer. Many programs are available, including Password Safe and KeePass. There are also encrypted portable devices like SplashID Key Safe. You can stash one in a fireproof box and give your master password to a friend or your lawyer.
Additionally, although it is not mentioned in the article, it’s my understanding that Facebook has in recent years streamlined the process to allow a third party to gain access to the account of a deceased person to make appropriate changes such as putting it in inactive status while still retaining the content that was posted on the page when the account was active. Given the fact that I have gotten a birthday notice for a former law professor who passed away two years ago, it doesn’t appear that they’ve done a very good job at publicizing that feature, though.
As with many other things, this is one of those areas where the law has yet to catch up with technology. Online personas are as much a part of a person’s “property” as anything else they leave behind to their families, and there ought to be an easier way for them to determine in advance what happens to that person after they die. That could mean deleting everything, it could mean letting it live on. Whatever the choice is, though, there’s no reason why you shouldn’t be able to put forward instructons about how you want it handled should the unthinkable happen.