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BBC Capital

Digital after death: A grave concern

About the author

Eric is a freelance journalist who lives in Fort Lauderdale, Florida. He is formerly a writer and editor at New Times in Fort Lauderdale and The Pitch in Kansas City, Missouri. His work has been featured by  the Florida Center for Investigative Reporting.

Not preparing a digital will can come back to haunt family members (Thinkstock)

Not preparing a digital will can come back to haunt family members (Thinkstock)

Think for a minute about what you have stored on the internet.

The obvious things probably come to mind first — photos on Facebook, music from iTunes. Then there are presentations, business plans, scientific research or even just personal messages or essays stored in the cloud. Then there are the membership clubs such as frequent flier accounts or hotel loyalty points.

Now, think about the price tag you’d put on those digital assets. Yes, a price tag. Few people realise there is real money attached to our online stuff. Computer security company McAfee surveyed more than 3,000 customers in 10 countries in 2011 and found that their online assets were worth an average of $37,000. In the US, it was higher, at $55,000.

It is easy to overlook the value — either sentimental or monetary — of the data and information we cede to the cloud. It is even easier to avoid asking the question: what happens to those assets when we die?

If you ask the social networking site, email provider or loyalty club administrator, (or read those lengthy, confusing user agreements), access to your profile, communiqués or hotel points must die with you. Yes, you likely did agree — in the fine print — to those terms.

But now, many people are fighting back. They insist survivors should have access to those assets. Increasingly, digital asset specialists have devised recommendations on how to get them, even if the online agreements you signed specifically prohibit sharing passwords and account details.

How the battle for your data is shaping up in the afterlife — and what it means for you.

A Challenge for the Grieving

Few laws govern online information once we pass away. A tangle of confusing user agreements and a lack of legal oversight have created confusing, even tragic, problems for those who try to get data stored by loved ones.

“It’s a mess,” said Mary Yurkovic, a Chicago-based technology consultant with the Media & Entertainment Services Alliance, a group that represents and works with online content service providers. 

In the US, seven states have passed laws regarding access to online assets after death; some deal only with the ability to access email accounts, others deal more comprehensively with other forms of digital assets. But enforcement is tricky. Online companies, which operate across state or national boundaries, may be headquartered in a different state than where a user agreement was signed. That means that an agreement signed before death to open an online account may be governed by the laws of a different state that does not have digital legislation.

Without uniform laws, grieving family members often have to pore over the fine print of online legal documents, said Sharon Klein, an estates lawyer in Wilmington Trust’s New York City office.

Hidden within the dozens of pages of user agreements are strict stipulations that put survivors at a disadvantage. Yahoo’s email agreement, for instance, says the company will delete the accounts of those who have passed away.

“It has become this morass ... if you haven’t prepped before your death,” Klein said.

While the digital asset experts BBC Capital spoke to said they’re not aware of a company shutting down the account of the deceased after a family member has gained access, Klein said it’s likely to happen in the future, especially if, for instance, grieving family members get into a spat over who should have access. Eventually such a fight will spill over into a courtroom.

In April, Google took steps to simplify retrieval of digital assets after a death. The company’s new “Inactive Account Manager” allows users to specify who can get access to information after an account has gone quiet. Users can also to pick and chose who sees what information. For example, they can specify that a spouse can have access to everything, while business partners can access only stored documents.

“None of us want to think about death, especially our own,” said Nadja Blagojevic, Google’s public affairs manager based at Google headquarters in Mountain View, California. “But it’s important to be thinking about what happens to our digital assets after we’re gone.” 

Tips for survivors

Google advises against sharing passwords, but that’s exactly what estate planners and internet experts recommend. Tina Annis, an estate lawyer in Concord, New Hampshire, has begun asking clients to list digital assets along with other possessions when they begin planning a will. 

“Often their eyes light up when they realise all the things they’ve stored online. They’ll feel better sharing their password with someone to make sure all of it doesn’t go away,” Annis said.

Estate planners recommend creating an inventory of all online assets, including photo storage accounts and cloud-based presentation software—think Dropbox and Snapfish. Then share passwords with family members to be sure they can access accounts if needed. Back everything up in a secured place, like on a flash drive stored in a safe deposit box, Klein said.

If you’re looking to gain access to the account of a deceased family member and don’t have the passwords, it can be tricky, Klein said.

Most of the big internet companies, such as Google, require survivors write a letter, including proof of death, and request access to a deceased’s account. It can take months to get an answer, and in the end, there’s no guarantee that you’ll get access.

“Because there’s no uniform law, you have to look provider by provider,” Klein warned.

Until states or federal governments pass a uniform law, Klein predicts lawsuits over digital assets will begin hitting probate courts. “People fight over everything after people die,” Klein said. “I have no doubt they will fight over digital assets.”

Parents versus Facebook

Just how bad has it become? Consider what happened after 15-year-old Eric Rash took his own life near his parent’s Virginia dairy farm on 20 January 2011. Police told his father, Ricky Rash, to go in to Eric’s Facebook account to see if there might be a clue there about what led him to suicide.

“When we contacted Facebook to gain access, we were just flat out denied,” Rash said. “The first thing we learned is that there’s nothing governing this, no one agency in charge of it.”

Facebook didn’t respond to a request for comment, but in February a spokesman told the Washington Post that laws prevent online content providers from giving access to third parties. Rash and his wife pressed legislators in his state to change that.

“People need to know about this,” Rash said. “We were able to get access for parents in Virginia, but there are still a whole lot of people who can’t get access to a whole lot of accounts.”

People fight over everything. — Sharon Klein