I got a notice from Facebook not long ago that it was my friend Marilyn Younger’s birthday, along with a suggestion that I write on her wall.
The next day, I got a reminder from online gaming service Pogo that Scrabble was her favorite game, and I should consider joining her online for a game.
I’d be more than happy to play an online game with Marilyn. I can’t, however, because my friend lost her third battle with cancer two years ago.
Like most people, the always organized Mrs. Younger didn’t think of her digital assets when she was putting her affairs in order. She understood the value of good passwords, however.
Hers were so good that no one could figure them out after she died. So her accounts on Facebook, Twitter and other sites are still out there, and friends continue to get poignant reminders of how much we miss her.
Time has a good article by Katy Steinmetz on handling digital assets after you’re dead. It covers the basics, like deciding who will have access to your email and social media accounts, and how to ensure that your executor can follow your wishes about what happens to them when you’re gone.
iTunes vs. Bruce Willis
There are a few things not included in the article – iTunes, for instance. Actor Bruce Willis, who reportedly spent more than $10,000 amassing a huge iTunes library, was shocked and angry when he found that Apple’s “terms and conditions” (which we all accept when we sign up) specify that he doesn’t really own what he’s bought there, and he couldn’t pass on ownership of his iTunes library to anyone else after his death.
There were rumors that he planned to sue (which would have been a good thing in my opinion, since a high-profile suit might have forced Apple to reconsider its policy), but, alas, no suit was filed.
If I were prone to placing bets on the reasons for other people’s actions, I’d bet that Willis realized that it would cost more than $10,000 to fund a lawsuit against Apple. I’ve not spent anywhere close to $10,000 on iTunes, but it annoys me that I can’t pass on the ownership of my iTunes library to someone else after my death.
The truth is that when we click “buy” to download movies, music, photographs, software, or apps, we’re not really buying anything. We’re paying for a non-transferable license to use what we’re paying for in certain ways, and we don’t own what we’ve paid for.
Within the terms of purchase (that no one ever reads) most companies skirt around the issue that Apple addresses head on in the The Mac App store agreement: “The Mac App Store Products and App Store Products made available through the Mac App Store Service and App Store Service are licensed, not sold, to you.”
As for the scope of that license, “You may not rent, lease, lend, sell, transfer, redistribute, or sublicense the Licensed Application and, if you sell your Mac Computer or iOS Device to a third party, you must remove the Licensed Application from the Mac Computer or iOS Device before doing so.” (I added the bold face type and underlined content to draw attention to specific phrases.)
One reason that estate planning for digital assets is so hard is that a non-transferable license ceases to exist when the original licensee dies.
Lawyers for the companies granting the licenses would say that we should change our passwords regularly, so even if heirs can track down a sticky note with a password scrawled on it, chances are it will not work.
I’m not sure how Apple is going to know that I’m dead if whoever inherits my iPad knows my password. What’s to stop them from coninuing to listen to music, add new movies, and add or use apps on the device? Will Apple’s lawyer’s arbitrarily decide at some point that I must be dead because it’s been XX years since I originally licensed certain content? They know how old I was when I first joined iTunes, becuase I was required to provide a birtdate. If it decides I am dead after some period of time, will it terminate my passwords — or is there a remote kill switch buried in my iPad so it can be turned off forever?
Protecting Your Online Reputation After Death
And what about all the other sites where I have passwords and digital assets? Google’s Gmail support page warns that “any decision to provide the contents of a deceased user’s email will be made only after a careful review, and the application to obtain email content is a lengthy process.”
Someone seeking to access the email account of a deceased spouse or child must submit (via snail mail or fax) their full name, mailing address, email address, a photocopy of a driver’s license, the Gmail address of the deceased user, the death certificate of the deceased user (with an English translation if the original is not in English) and proof that the applicant has received an email message from the decedent’s account.
After submitting all of this information, Google “will review your request and notify you by email as to whether or not we will be able to move . . . to the next steps of the process,” which may involve obtaining a court order and/or submitting more information.
A deceased person’s Facebook page can be converted into a “memorial page” upon request from a family member, but Facebook will not provide the login information to the decedent’s family.
Here’s a partial list of the places where many of us have “assets” that are accessible via the Internet
• E-mail accounts – Gmail, Yahoo, etc.
• Social Networking Sites – Facebook, LinkedIn, Google+, Twitter, Pinterest, Reddit, StumbleUpon, and so on
• Online Storage Accounts – iCloud, Carbonite, Drop Box, mac.com, Google Drive, Amazon, Rackspace, etc.
• Financial Accounts – bank accounts, stock accounts, home loans, student loans
• Photo Storage Accounts – Piccassa, Flickr
• Personal or Company Websites and Blogs
• Online Purchase Accounts (often linked to a payment service or credit card for 1-click purchases) – Amazon, eBay, Zappo’s, brick-and-mortar stores with websites
• Music and Application Accounts – iTunes, Amazon, Android
• Virtual Property – Second Life, World of Warcraft, other role-playing identities
• Online Banks & Payment Services – PayPal, ING, etc.
• Online Games (especially those where “virtual coins” can be purchased and spent) – Online casinos, Farmville, etc.
• Online Dating & Matchmaking Sites
Dead Men Don’t Bid on eBay – Do They?
If you’re wondering why I included online dating and matchmaking sites, it’s because they’re great places for would-be identity thieves to strike. Why should you care about identity theft after you’re dead? Well, consider what happened to a friend of mine.
Her only son, a single, 32-year-old paramedic, was killed by a drunk driver. She was left to handle his estate – which included a house, a car, a savings account in an online bank, and the insurance pay-out that followed his death. She was close to her son, and thought she knew what was happening in his life.
She didn’t know that he had been chatting with a woman in another country via an online matchmaking service. He’d given the lady a lot of personal information, and his password for most of his accounts (AdamEve6309) was made up of their combined first names and the date they met. (That isn’t his real password, of course.)
You’ve probably figured out what happened next: his identity was stolen, and thousands of dollars were transferred out of his accounts while more thousands of dollars in credit card debt was run up on online auction and retail sites – all for products purchased and shipped outside the U.S., where it’s hard to enforce U.S. fraud laws.
State Laws Can’t Keep Up
With half of all seniors over 70 online, and 80% of Baby Boomers using social media regularly, the problem of handling the online accounts of the deceased is a growing problem. Several states tried to spell out the rights and responsibilities of estate executors and online service providers, but legislation can’t keep pace with technology.
Rhode Island has the “Access to Decedent’s Electronic Mail Accounts Act” which says that an email service provider must give the executor “access to or copies of the contents of the electronic mail of a deceased person” upon submission of a copy of the death certificate and proof of identify as the executor of the deceased person’s estate. Connecticut, Idaho, Indiana and Oklahoma have similar laws.
I haven’t yet seen a law that I think addresses the issue of digital assets in detail – especially in the event that you don’t want the executor of your estate to have access to your digital assets.
A friend in put it this way. “Look, I’m a single guy in my 30’s. The thought of my mom reading my email or accessing my computer to see what websites I visited makes me physically sick. Dead or alive, I’d just as soon not have her knowing things about me that would just upset her.”
He’s not alone – many married people wouldn’t want their spouses to have access to their email, browsing history, or social media accounts, either.
Naturally, whenever there are problems, entrepreneurs are ready to solve them. Companies like MyWebwill, Entrustet, and Legacy Locker function like an online safe deposit box, where a person can create an account, list people authorized to access their information on their death, and identify online assets. You can even name different “beneficiaries” for each account – so you could give your spouse or partner access to your bank and brokerage accounts, but specify that your lawyer wipe your email and social media accounts.
A lawyer in Florida has gone a step further, and developed something called the Digital Asset Protection Trust. Attorney David Goldman says that the DAP trust “can manage these assets and allow only your designated representative to access them without violations of the license terms and without potential liability to others who may claim an interest or claim to have been harmed by the improper access and use of information contained in these assets.”
The legal issues will be resolved over time, although it’s not clear exactly how. One thing is certain today: protecting your digital assets needs to be part of estate planning for all of us, regardless of age.