Life After Death: Who Gets To Keep Your Digital Assets?

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Many people assume they can decide what happens by sharing certain passwords with a trusted family member, or even making those passwords part of their will. But in addition to potentially exposing passwords when a will becomes public record, anti-hacking laws and most companies’ “terms of service” agreements prohibit anyone from accessing an account that isn’t theirs. That means loved ones technically are prohibited from logging onto a dead person’s account.

Several tech providers have come up with their own solutions. Facebook, for example, will “memorialize” accounts by allowing already confirmed friends to continue to view photos and old posts. Google, which runs Gmail, YouTube and Picasa Web Albums, offers its own version: If people don’t log on after a while, their accounts can be deleted or shared with a designated person. Yahoo users agree when signing up that their accounts expire when they do.

But the courts aren’t convinced that a company supplying the technology should get to decide what happens to a person’s digital assets. In 2005, a Michigan probate judge ordered Yahoo to hand over the emails of a Marine killed in Iraq after his parents argued that their son would have wanted to share them. Likewise, a court eventually granted Williams, the Oregon mother, access to her son’s Facebook account, although she says the communications appeared to be redacted.

Enter the Uniform Law Commission. According to the proposal, the personal representative of the deceased, such as the executor of a will, would get access to — but not control of — a person’s digital files so long as the deceased didn’t prohibit it in the will. The law would trump access rules outlined by a company’s terms of service agreement, although the representative would still have to abide by other rules including copyright laws.

That means, for example, a widow could read her deceased husband’s emails but couldn’t send emails from that account. And a person could access music or video downloads but not copy the files if doing so violated licensing agreements.

Williams said she supports letting people decide in their wills whether accounts should be kept from family members.

“I could understand where some people don’t want to share everything,” she said in a phone interview this week. “But to us, losing him (our son) unexpectedly, anything he touched became so valuable to us.” And “if we were still in the era of keeping a shoebox full of letters, that would have been part of the estate, and we wouldn’t have thought anything of it.”

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