The following is a guest post by Jefferson Bailey, Fellow at the Library of Congress’s Office of Strategic Initiatives.
Here on The Signal we often talk about the importance of preserving your personal digital materials and we provide a variety of resources offering guidance on what actions to take. One aspect we have spoken of less often, however, is what happens to your digital assets after you have “shuffled off this mortal coil,” to use Shakespeare’s exquisite phrase. Mike Ashenfelder wrote an insightful post on this last summer.
But with the recent release of an app for a popular social media site that allows users to create a final, farewell video or text that is posted upon confirmation of their passing, as well as an upcoming SXSW panel “You’re Dead, Your Data Isn’t: What Happens Now?” covering the “legal frameworks and standards” for management of legacy data, it seems time to revisit the issue of digital estate planning.
It is by now a trite observation to note the extent to which are lives are lived “online” and that our personal materials and data exist largely in digital form, are housed in increasingly dispersed locations and are often held on third-party or “cloud” servers. At the same time, the ubiquity and accessibility of those digital artifacts of our lives – our electronic correspondence, our online journals and diaries, our cameraphone pictures, all the digital “evidence of us,” – lends them a familiarity that often masks the legal and managerial complexity of that arrangement.
That same accessibility also gives those items a misleading sheen of permanence that defies the realities of what we euphemistically call our “human obsolescence.” As more of our valued “heirlooms” are created, shared, and stored online, and with one popularly-cited statistic (which we can neither verify nor source) claiming that over 285,000 social media account holders pass away each year, digital estate planning is becoming an essential part of overall estate management.
The Legal Landscape
Our digital assets are generally considered our physical or intellectual property; however, the legal permutations of that fact are still poorly defined. One early, notorious legal case contesting digital estate issues involved Justin Ellsworth, a U.S. Marine killed while on duty in Iraq in 2004. Citing terms-of-service agreement language that forbid account transfers and terminated rights to content upon death, Justin’s email service originally denied his family’s attempt to recover his correspondence – a decision later overturned by a Michigan court.
Since that case, five states have enacted laws covering “digital assets” as part of estate planning, with Connecticut passing the first law in 2005 and the most recent being Idaho, which allows a “conservator of the estate” to “[t]ake control of, conduct, continue or terminate any accounts of the protected person on any social networking website, any microblogging or short message service website or any e-mail service website.”
Service Providers Approach
Most major content or service provides have specific policies for how accounts can be managed or accessed after an account owner has passed away. While the processes for handling the accounts of deceased members may differ, most of these companies will have specific resources available in either their help sections or their terms of service detailing the steps that need to be followed.
For instance, there can be information on how to memorialize an account and how to access a deceased person’s mail or microblog. Alternately, some companies have specific areas, such as Section 27 of this Terms of Service agreement detailing account rights post-mortem. Knowing these policies will help you plan accordingly
Personal Digital Estate Planning
There are a surfeit of online resources, articles, as well as conference proceedings and a burgeoning industry offering online tools and services to help manage estate planning for your digital assets. As well, our resources for preserving your personal digital archive will be useful when organizing your digital estate.
Similar to our advice on personal archiving, digital estate planning is organized around key activities. These include the need to identify all the online accounts, tools, and services which are part of your digital legacy. This includes obvious entities such as financial and merchant accounts, online businesses, email, blogs, and social media but also online storage accounts, web hosting information, domain names owned, online gaming information and any other online activity or service that merits inclusion in your digital estate.
Web bookmarks are a good way to identify potential sites to be included in your planning. You will also need to locate your digital assets, which live not only online, but also on your personal devices. Create a thorough list of all the computers, external drives and other hardware devices that may contain materials you want preserved. Describing the location of your digital assets will help your heirs manage the full range of your digital legacy.
You will also need to document all URLs, usernames, passwords, and, if necessary, specific devices, directories or specific file folders you want preserved or bequeathed. Documenting the means of access is required for your digital executor to manage your digital assets. This information can be consolidated in a password protected spreadsheet or document and periodically delivered to a trusted beneficiary or preserved in a safe, secure offline location such as a safe-deposit box.
Documenting your digital estate also includes providing detailed instructions for how you want your digital archive managed. Should some items or accounts be preserved, deleted, bequeathed, or donated? And which items should be delivered to which trustee, friend or loved one? Can your heirs consider donation of your digital legacy to a local archive?
Lastly, the key step in digital estate planning is to authorize your digital executor in your legal will. You can grant this power to your overall estate executor or identify a separate digital executor to handle your digital affairs. If composing a legal will is too onerous, there are online forms providing sample language and forms for granting authority to a digital executor.
Digital estate planning should be an essential part of any personal archiving effort. Our legacies and memories are now inextricably tied to the digital world and are subject to the ephemerality and custodial complexity that world entails. Effective digital estate planning can ensure the preservation of your cherished assets long after you are gone.