Jul. 08, 2009 - Issue #716: Death 2.0
Dealing with Facebook after you Flickr out
Social networking sites have become a major part of our lives, but what happens to them when we die?
When well-known Edmonton musician and comedian Joe Bird died unexpectedly
in his home on April 1 he left behind hundreds of friends to mourn his
passing, including more than 600 who connected with Bird through his profile
And just as online social networking sites like Facebook, Twitter and MySpace have become an increasingly important part of the social lives of millions of Canadians like Bird—one estimate says more than a quarter of us now have a Facebook profile—they are also starting to play an important role even after we shuffle off this mortal coil.
"On the day of Joe's death we all went over to his house, and it was all fairly normal until about three or four hours after he was discovered," recalls Lorraine Swift, a longtime friend of Bird's, and one of a handful of people who his out-of-town sister trusted to help deal with Bird's effects after his death. "Then all of a sudden we heard, ‘It’s on Facebook’ and people started phoning us—somebody had obviously put something on his wall or had done some Facebook posting and then it just spread and became this huge Facebook funeral. Friends were writing on his wall and it just really became a way to connect with his history, because we were all missing him and everyone had all these different pictures from different times in his life—him and his 625 friends or whatever it is.
"And it was definitely the way that everybody found out," she continues. "We couldn’t have connected with that many people physically, on the phone or whatever, so it helped us that way, helped us get the word out and organize his memorial and all the other events."
Bird's Facebook profile is still active today, and another Facebook group set up to remember him has nearly 400 members and continues to attract new members, wall posts and photos more than three months after his death. But as useful as Facebook has proven to be in providing a way for the community to remember and celebrate Bird, those dealing with the nuts-and-bolts details of his possessions and affairs were soon faced with an increasingly common question: what exactly happens to our online identities when we die and who has the right to make decisions about them?
For Bird's friends, the predicament arose when they turned on his computer and found themselves logged into his Facebook profile.
"That’s when we started thinking about this whole issue: how are we supposed to deal with this stuff? We had to have lots of conversations with the close community about what we should do. Should we change his status? Should we post something? Should we change the profile pic—because I wonder if Joe knew that would be his last profile pic if he would have chosen that one," she says. "And we kind of thought, 'Do we need to check his email? What exactly needs to be done here? Who owns all this?'"
In Bird's case, his friends happened to have easy access to his Facebook
profile and email account, but often important information like the login
names and passwords of our ever-expanding universe of social networking
sites, email accounts and online accounts for everything from EBay to Flickr
follow the deceased to the grave, and it's those left behind who have to
navigate the relatively uncharted waters of finding a way to access
In recent years there have been a number of high-profile cases in the US of family members suing web companies to win the right to access a deceased loved one's online accounts. In 2005 the father of a soldier killed by a roadside bomb in Iraq had to take Yahoo! to court to win access to his son's emails, which the company ultimately delivered to him on CD and in printed form following the court decision. In February of this year, widespread publicity of the case of the sister of a deceased journalist who wanted her brother's Facebook page removed compelled the social networking giant to revise its policy, which had stated it would only "memorialize," or freeze, the deceased's profile but not allow removal.
While the idea of a multimillion-dollar corporation forcing a recent widow to take them to court to access a deceased spouse's emails or Facebook page might seem coldhearted, Cameron Hutchison, an assistant professor at the University of Alberta's faculty of law who teaches courses in intellectual property law and Internet law, says the companies are likely just playing it safe by complying with relevant privacy legislation.
Hutchison explains that privacy laws in Canada as laid out in PIPEDA, the Personal Information Protection and Electronic Documents Act, require companies to keep your private information—including, for example, passwords and the contents of your emails—secure.
"That’s some information that they probably would not be able to release to some third party without [the user’s] consent," he says. "So if you die, would they be able to release your Facebook account to your family? Technically I don’t think they would be able to do that. They'd say, ‘Well, we’d like to give this to you but we’re not sure what the law is on this,’ and you'd get a subpoena or sue them for disclosure and they’d probably be glad to comply with it, but they’re just afraid to be liable for doing it without knowing what the law is."
Part of the problem, Hutchison says, is that such legislation was never intended to resolve the issues of a Web 2.0 world.
"I don’t think this is something that was really envisioned by the legislation; it’s more about private companies like banks collecting purchasing behaviours and things like that. It wasn’t really directed towards things like this," he says. "So this is, like a lot of things with the Internet, new terrain. Facebook should not be able to pass on information about people to third parties without their consent, and there’s no exceptions to that in the act about family members, and again, why would there be? Because it’s not really directed towards that kind of problem. How do you deal with legislation where they tried to solve a problem and then you have a different kind of problem that comes within the terms of the statute? That’s a controversial area of legal interpretation."
The problem, explains Martin Kratz, a Calgary-based lawyer who focuses on
intellectual property and technology law with the law firm Bennett Jones, is
that in the absence of clear legislation about how to deal with such
situations, who has the right to access online identities or who owns online
assets comes down to an interplay between three factors: your intellectual
property rights to, say, the emails you have written, the tangible asset in
the form of the digital files containing that property, which is in the
service provider's possession and the terms of service you agree to by
clicking "I accept" when you sign up for a new account, which like any
contract you sign in the "real world" is contractually binding to you or the
executor of your estate.
The terms of service, which Kratz says the vast majority of people don't actually read, vary from saying nothing about what happens if you die to being very unambiguous. The terms of service for Yahoo!, which owns the photo-sharing site Flickr, state that accounts are non-transferable and any rights to an account "terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all Content permanently deleted." MySpace terms expressly prohibit users from "disclosing your password to any third party or permitting any third party to access your account" or "selling or otherwise transferring your profile"—which would be necessary to access the account of a deceased relative.
Facebook, currently the world's most popular social media site responded to a request for information about their policies with an email saying, "When it comes to our attention that a user has passed away, we put the profile in a Memorial State. In the Memorial State, certain profile sections and features are hidden from view to protect the privacy of the departed. We encourage users to utilize groups and group discussions to mourn and remember the deceased. If a loved one asks that the profile be removed, the account will be disabled."
Ultimately, though, Kratz says the law considers online assets to be substantially the same as any tangible good a person owns, and with proper planning accessing the contents shouldn't be difficult.
"When a person dies we have well-established processes for how the assets of the estate of the deceased are handled, and despite the novelty of the Internet it’s governed by the same rules as all other assets are, except that these are just intangible assets so they're more difficult for people to think about," he says. "So it would be very unusual for somebody to identify their Facebook account as an asset that they specifically want to give as a gift to another person."
The fact that most people simply don't yet think about online assets as something that should be considered in estate planning is exacerbated by the skewed demographics of who tends to use social networking sites.
"Young people just on average tend to think less about a will; they’re younger and they have less assets and often don’t have anybody to leave things to and they’re masters of the universe and immune from any harm and just never think about these things. So they’re both the greatest users of social media and they’re least likely to have a will where they’ve thought about this. "
While most people haven't considered explicitly putting their Gmail
account into a will—if they even have one—some online start-ups
have begun to address the problem of ensuring your family and friends have
access to social networks after your death.
Launched in April of this year, legacylocker.com offers an encrypted storage space—similar to an online safety deposit box—where you can name beneficiaries who will receive login names and passwords for all your "digital assets" should you die or become incapacitated. If you are reported dead to the site, two people you have named as verifiers must first confirm your death and your family or executor must produce a death certificate, at which point the information you set up is emailed to your chosen beneficiaries, giving them access to some or all of your various online accounts without the need to go through the courts. The service—which costs $30 annually to name beneficiaries for an unlimited number of assets or is free for a limited number—also offers the option to send out "Legacy Letters" to people you designate, to allow you to say goodbye via email from beyond the grave.
In a more stripped down alternative, deadmansswitch.net, you simply write a series of emails which are encrypted and stored on the site. At pre-set intervals you are sent an email to which you must respond in order to confirm that you are alive and well. Miss three consecutive emails and the site assumes something has happened and the dead man's switch is triggered, sending out whatever passwords, goodbyes or final admissions of infidelity you had set up.
The best option, Kratz says, is for people who have important information online—be they financially valuable or simply of sentimental value—to have a will that expressly deals with which family members or friends should have access to such accounts in the case of your death. While he says that your next-of-kin will usually be able to legally compel companies to release your intellectual property, such an alternative is often "awkward and expensive," and for people without a will it's essentially impossible for anyone but close family to get access.
Kratz also encourages people to read the terms of service before they sign up to an online service, and to the extent that you're not happy with how they deal with certain issues, let the companies know.
"Remember, the social networking sites are businesses, they're not intentionally trying to be difficult for the users. Some of the sites might not have thought about it, and by getting some user pressure they may well address those kinds of issues."
He adds that even though our online personas are becoming much more important and valuable, we're unlikely to see in the foreseeable future any action by governments to set out clear and consistent rules about how companies should deal with such online assets.
"The difficulty we have is that legislators tend not to pay a lot of attention to these kinds of issues until they become serious problems, and they will be serious problems in five or 10 years as you have a number of people pass on and in some cases maybe leave quite valuable assets that then are in limbo," he says. "Practically speaking what’s happening in the short term is that the companies are—at least to the extent that they’re addressing their mind to it—trying to come up with how they think this should work. What’s traditionally happened is that the courts exercising their common law jurisdiction have tended to address the specific problems and make new law to sort out these problems in specific cases, and as they start to do that they develop the set of rules that ultimately will govern until at some later point maybe a legislature takes interest and does something about it." V
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