A number of technological systems , sometimes known as "digital wills" are appearing on the market to help people bequeath digital assets such as passwords, emails, virtual game assets etc. Do these help provide a legal solution? Or do they merely confuse further a landscape alreqdy lacking good practice?

1. Technologies for bequeathing
digital assets: help or hindrance?
Lilian Edwards
Professor of E-Governance
University of Strathclyde
and
Edina Harbinja, PhD
candidate,
University of Strathclyde
CDAS
Conference, Bath, June
2012

2. Types of digital assets bequeathed?
• SNS/Facebook profiles
• Blog site posts -
literary/cultural heritage?
• Photos eg Flickr – value plus
sentimental appeal
• Ebay IDs and reputations,
• Domain names –> entire
online businesses
• Emails eg Gmail – all of above
plus access to deceased’s
network
• Digital music, films, e-bks
from iTunes, Amazon etc
• MMORPGS eg WoW –
account, virtual currency, assets
and avatar
• Online assets eg PayPal
accounts

3. Observations
• Such assets primarily associated with the young, but no longer the
case.. ?
• 53% of UK population between 65-74 years, and 25% of 75 and
more year olds used the Internet in 2011 (Ofcom 2011)
• Use of social networks and ICT increasingly associated with better
quality of life for older/senior people
• The over 55s value their DAs more highly than other age group (The
Dying in a Digital Age study, 2011) with 83 per cent saying they have
strong sentimental value and 89 per cent financial value
• “Saving money, keeping in touch and reducing feelings of isolation
are just a few examples of how the internet can change lives for the
better.” Martha Lane Fox , digital inclusion supremo
• Nearly 7 m over 55s in UK still not online (April 2012) -> Public
drives to increase inclusion e.g. Silver Surfers Week 2001-2012 –
also saves govt money e.g. e-governance, welfare, taxes etc online.
• But little advice on how to deal with digital assets in wills. And
intestacy is the norm: more than 1/3 over 55s have not yet made a
will (Guardian, 2010). 54% died in 2009 without a will.

4. Legal problems around wills and digital
assets
• Legal issues:
– Are these assets property? Can they be bequeathed? Who owns them?
– What is role of intermediaries who control access and possibly ownership via
contract, e.g. Facebook, eBay, Spotify, Google?
– Conflicts of law? Succession/ probate law is heavily local while DA s likely to be
hosted almost anywhere – controlled by what legal system?
– Good practice and experience among solicitors in UK at very early stage
– No specific legislation in UK as in Oklahoma, Ohio, Nevada etc. (7 US states so
far)
• Practical issues:
– Getting access to assets may be under control of intermediary and determined
by procedures which do not map to local laws, e.g. order of “heirs” on
Facebook’s form
– No consistency re how sites treat assets after death; e.g. Yahoo! Policy forbids
transfers to heirs after death (US marine case); FB allow memorialisation but
not transfer; Spotify did not allow deletion of playlists.
– Best advise often to staple passwords to will, but usually transfer banned by
terms and conditions -> possible termination a/c?
• Are digital wills – “technologies for bequeathing” - the solution??

5. Solutions? “Digital will” /“trust”/ digital
executors / password locker sites
• Different business models:
― “digital wills”
• Legacy locker - “the safe and secure way to pass access to your online accounts to
friends and loved ones”; “a digital safety deposit box” (In the event that someone
submits a name as recently deceased, contacts all of his listed verifiers to confirm
that the assets should be released and passed to nominated beneficiaries), also
document backup and legacy letters
• Asset lock – “Secure electronic safe deposit box”; once a minimum number (set by a
user) of recipients sign in and confirm death, the account will be unlocked after a
time delay (which can be set by a person). The information and instructions saved
will be sent to the family and friends (docs copies, final
wishes, letters, instructions, secret info etc.)
― “digital asset trusts” – e.g. LifeEnsured, appointed as a successor trustee for assets listed
in the trust doc (avoiding formalities of probate), “Irrevocable Trust Fund” - to carry out
the post-death management of the on-line accounts, if financially unable to provide
account management services

6. ― email services, video messages, legacy websites etc.
• Death switch – system prompts a password at a regular schedule to make sure a
person is alive, if no answer, supposes death or critical disablity and pre-scripted
message automatically emailed to those named by the person
• If i die – Facebook application, leaving messages to facebook friends on death, min
3 trustees to confirm death
• BCelebrated - autobiographical legacy website, offers personalised memorial
websites, protected private messages and emails, activated by chosen activators
• DeadSoci.al – extending social network profiles (Twitter, Google + and Facebook)
after death, enables scheduling of messages that are distributed post-mortem
― offline and online services combined, e.g. digital executors (to try make it legally
binding)
• Entrustet – account guardian (transfers accounts to heirs), account incinerator
(deletes all accounts listed), lawyers directory (finds digital estate planning
attorneys)
• My Digital Executor (UK) – involving 2 solicitors who keep email
accounts, passwords and list of digital assets, assets transferred in the form of
codicil
• Final Fling (UK) - advice on living an dying well
(funerals, celebrations, bereavement, treasure trove, wills, advance decision, safe
deposit box and essential documents; wills printed out, signed and witnessed)

7. Digital will - example

8. Post-mortem emailers

9. Digital executor - example

12. Possible benefits
• In the absence of wills, people could easier express their wishes re e.g.
funerals, letters, memories etc. (no formalities required like for wills), but note
possible conflicts with the law of intestacy if property involved
• Where wills exist, easier to update accounts, passwords, letters, etc. via these
services, than changing the will with all the formalities required (again caution if
property involved)
• Socialising and advising functions - encouraging people to think ahead, talk openly
about death and dying; discuss and share views with members of communities;
offer useful advice on funerals, celebrations, bereavement, wills, advance
decisions, safe deposit boxes and essential documents
• Some combine offline and online services, such as making of a will and codicil, thus
mitigating “non-binding effect”
• Rising awareness of the “digital assets inventory”, people usually disregard and
underestimate (but 2011 study: UK's digital music collections worth more than
£900 million, 45 per cent of people having digital music collections - value it at over
£100 and 10 per cent at over £1,000)
• Perhaps the use of storage capacities of these services, without the actual transfer
of DA outside probate? – to make probate easier?

13. Drawbacks / problems
• “Ownership of any electronic rights related to the internet such as intellectual
property, domain names, or marketing affiliation agreements, cannot be granted or
transferred through Legacy Locker.”; ”not a legal substitute for a Will, Trust, or Power of
Attorney”; “not legally binding” – if digital assets are defined as property or other right, than
what could be transferred through it? need for probate?
• Death Switch: “These Terms of Use and your use of the website shall be governed by the laws
of the United States and the State of Texas without regard to its conflicts of laws
principles.”, Bcelebrated – the laws of state of California, without the effect of choice of law;
if i die - Israel jurisdiction – jurisdictional issues, services useful only for citizens of that
particular state? Some do not recommend using it out of the US (LifeEnsured)
• Conflicts with terms of services of SNSs, other accounts and services (often non-
transferrable after death)
• Publicity of the will – these services not public, but making accounts and passwords public?
• Extension of our digital personalities – e.g. DeadSocial, privacy risks? Post-mortem profiles
deserve post-mortem protection of privacy?
• Security breaches and identity thefts (are security measures employed adequate?)
• Unstable market? Viable companies offering these services? Overstated their abilities? (see
Beyer and Griffin, Estate planning for digital assets, July 2011), thus not “reliable and
permanent" form of evidence of testamentary intent (Langbein, 1975)
• Digital Assets Trust as a better solution? Jurisdiction issue (civil law countries)?

14. Post mortem privacy
• Specific issue not yet addressed: we allow people to control their property after
death but not generally their privacy or reputation: in UK the dead have no rights in
libel nor in data protection/ breach of confidence).cf Yahoo! US Marine case.
• Conflicts?: “Shame on Yahoo for not allowing this family to have access to their
deceased son's e-mail. As a mother and wife I can only imagine the grief the family is
feeling at a time like this. All the family wants is a small token of their son to hold on
to. I would want everything and anything that I could have also. I can understand
Yahoo's privacy policy concerning passwords, but there should be a way for families
to retrieve e-mails.” But what if he was e.g. gay?
• Ask SNSs and other platforms to adopt practices to make bequeathing digital assets
easier e.g. allow transfer passwords; allow nomination of “digital executor”.
• Extend data protection (and other?) rights to protect the personal data of the
deceased. Transmit to heir? Lasting how long? Denmark, Estonia (30 years only)
have DP rights after death; France privacy rights; Sweden “confidentiality”. DP
Regulation reform does not harmonise. But do we want to recognise a right of post
mortem privacy?
• Draft DP Reg does suggest right of interoperability for user personal data – could
help? Mirrors/archives? Also right to forget – extend to will requests by the dead?
• But such measures require foresight – cf prevalence of intestacy.

15. Thank you
lilian.edwards@strath.ac.uk
@lilianedwards
e.harbinja@strath.ac.uk
@EdinaRl