Online Life After Death
Recently, I had the pleasure of taking part in a panel on what happens to one’s online identity after death. Although I am primarily a Seattle criminal defense attorney I do some work with end-of-life planning as well. As such, I was asked to provide a legal perspective to the topic. Also attending was a Google employee and a University of Washington bioethicist. Everyone brought a unique perspective to the subject.
In this case, online presence means any personal data that exists in the internet. Examples of this include your Facebook and Twitter of course, but also online bank accounts, email accounts, Google docs, music libraries, and plenty more. We’re way past the time where someone’s personal information stays solely in their home, or maybe in a safety deposit box. The omnipresence of the cloud means we all have more information than ever before stored in servers around the world.
What people wanted most was practical information on how to best plan for their death. I gave my take on the question, and people seemed pretty receptive. In fact they liked the info so much, I thought it would be worthwhile to share with everyone. So here are ta few tips to determine and define what happens to your online presence after death.
One note first: this stuff is important not just if you die, but also if you become incapacitated for a while. If you are in an accident and fall into a coma for a few weeks, you may need your spouse to pay bills or access contact information that is only stored in your email account. All this basically means, a little work now to save a lot of headache down the road.
Appraise Your Online Presence
The first step to affecting your online existence is to appraise it. This can be more exhausting than people realize. When I started researching this topic for the panel, I was amazed at how many websites and companies had a piece of my information. For things like bills or bank accounts or email accounts, this is important stuff that my family would like to be able to access. But without creating a list of accounts and log-in info (more on that below), their ability to access this stuff, or even find it, becomes a lot more difficult.
So how to do this appraisal? Create a spreadsheet that lists the company, your log-in info, and any access you want someone to have regarding that company. For example an entry could read:
- Google’s Gmail ■ JohnSmith@Gmail.com ■ Password: 123456
- Google’s Gmail (secret email address for affairs) ■ JohnRomeo@Gmail.com ■ Password: 123456
Just list every website you have an account on. Then print out a copy and keep it in a safe place or give it to your spouse or trusted friend or family member. Very, very few online companies ever send you physical mail, so this may be the only physical place that notes your relationship with these companies. Also if you do want some kind of maintained relationship with recipients on the list after you’ve passed away or are in a coma, make that clear too (see below).
And if you change your passwords, update your list!
Communicate your desires
As I wrote last time about this subject, the number one rule with end-of-life planning is to communicate your desires to the people who are making those decisions. This does two very good things.
First, it gives you the greatest chance of actually accomplishing what you want. If you want your Facebook page to be up for the rest of time, say so. If you want it to die with you, you can say that too. If you want all the information in your Gmail account downloaded and given to your brother, say so. Your personal representative or spouse can accomplish what you want, but only if they know what it is. Without communicating what you want, no one will know what you want let alone be able to carry out your plan.
The second benefit is that your friends and family, who are already going through a tough time, don’t have the stress of deciding what to do with your online accounts. Dealing with a decedent’s possessions, let alone their online accounts, is emotionally draining.
All this means that after you make the list of accounts described above, you need to take some time and figure out where you want all that online data to go. The best thing is to simply list what you have and what you want done with it. By law, your estate’s executor must try to fulfill your wishes when possible.
Determine the accounts’ Terms of Service and death policies
Deciding what you want is very important. But a big question is whether these companies permit you to do what you want.
In this way, online data is different from other things. If you were talking about your end-of-life healthcare, you’re the only one with a real interest in it. No corporation in Delaware cares (in the legal sense) if you want to be unplugged from machines. And if you own a physical possession like a car or rare coin or whatever, no one but you has any legal interest in what happens to it. If you want your possessions given to charity or buried with you, pharaoh style, no one but you gets to make the call.
Online data is different because for one, it’s not corporeal. The data and its backups are just ones and zeroes. Even if you burn a DVD of your photo albums, that data still exists elsewhere. Perhaps in many elsewheres.
Online data is also different because the companies that give you access to their servers also have an interest in your data. Most (but not all) companies acknowledge that you own your own content. That’s fine, but they own the programs that give people access to and will transmit that content. For example, Facebook could say “Yes, you own your status updates, but we determine whether you can log on to retrieve it.” Owning content isn’t the same as accessing it. So, the question is really what these companies’ policies are about accessing information after a user dies.
But that’s what’s interesting about this topic. A great many companies have no death policies at all. But the technology is so new, and is used primarily by younger people, that most of its users are still alive. That means many of these companies haven’t faced a significant issue of dying account-holders, and may not have their own plan in place to deal with the situation.
But some do. However, once again because all this stuff is so new, companies’ practices are wildly divergent. For example, Facebook will “memoralize” an individual’s page so that people can post memories, but that individual’s account cannot be logged into or and the page cannot be significantly altered. Anyone can request the page be memorialized, but only near kin can request the page be deleted. And Facebook has wavered on whether kin is eligible to receive the contents of that account (their Terms of Service are silent on the issue).
Yahoo.com, which owns Flickr.com, a photo-sharing website, has a policy where they will delete your contents as soon as they discover your death. End of story. So if you want your family to have copies of your Flickr photos and your family tries to go through Flickr to do so, they’re going to have a very tough time getting those pics. Maybe impossible, which is another reason to ideally include passwords with your online appraisal.
Gmail kind of splits the middle by laying out their policy, but not necessarily giving up the emails. In short, Gmail will give you someone else’s account if you jump through a lot of hoops. Maybe.
Almost all companies have a part of their Terms that sharing a password is against those Terms, and instant grounds for an account to be deleted. Bu as far as death is concerned, it behooves you to do your homework. See which companies require proof of death to assist the estate, and what companies use proof of death to delete the account regardless of the decedent’s wishes. And then use that information to decide if your personal representative or family members should go through “official” channels or just use your passwords to impersonate you and access your data. As I said, most companies consider this a Terms of Service violation so they have a right to delete your information if they learn about it. You’ll have to decide if that’s an appropriate risk for you.
As a final note, these guidelines apply to death only. No company I looked has a policy in place if a user is merely disabled or comatose. In those cases, it would behoove you to have those passwords and accounts available with instructions. Since the company won’t help you, your friends or family will need that info to affect anything.
Because this stuff is so new, there are a lot of unchartered waters. What’s true today may not be accurate in a few years or even a few months. Nevertheless, it’s a good idea to do your homework on the accounts you use most or that have the most sensitive data. If you do know what you would like done with your personal info, the best you can do is appraise that info and communicate what you want. And if you need someone to help prepare these end-of-life documents, feel free to give me a call.