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Digital Data Rights: Post Mortem

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  • Digital Data Rights: Post Mortem

    Lawyers raise questions about digital data rights after the owner’s death
    August 20, 2013

    Thinking of bequeathing your coveted music collection and extensive home library to a loved one after you’re gone?

    If it’s on your iPod and Kobo as opposed to the Ikea shelving unit in the den, think again.

    What happens to a person’s digital data after they’ve died is a question lawyers started to wrestle with Tuesday during the final day of the Canadian Bar Association’s (CBA) annual conference in Saskatoon.

    Doug Surtees, a wills lawyer and associate dean of law at the University of Saskatchewan, told Postmedia News in an interview that the law, as it’s written, doesn’t take “digital assets” into account and it’s time for legislation to deal with what will inevitably become a growing problem.

    “Companies write agreements in ways that give people very, very few rights with respect to their digital asset, so I think what we need is legislation that simply sets out the rules,” Surtees said, noting buying an album or book from iTunes or Amazon, for example, is not the same as buying a CD from HMV or a novel from Chapters.

    “What you actually own is a non-transferable licence to access a digital copy.”

    In other words, not only will your loved ones have no access to your account when you die, if the hard drive or eReader you’ve left the content on is destroyed, they cannot ask the company to restore the information as would the primary account holder.

    It’s an issue actor Bruce Willis raised last fall. According to reports, he considered suing Apple over iTunes ownership rights and while it appears nothing ever became of it, Surtees said it’ll likely take a rich celebrity from California where many of these companies are based to really get the ball rolling.

    Still, legislation — which would fall under provincial jurisdiction but ought to be uniform across the country, he said — would “give consumers some recourse” to take a company to court to fight for access.

    “Contract law and wills law was set a long time ago and just didn’t contemplate things like digital assets,” Surtees said. “What specifically should that legislation — what rights should it grant us? That’s the million dollar question. That’s why I think we need to have discussions like the one the CBA is starting.”

    Anther key issue in the digital age, he said, is privacy. While some may want loved ones to be able to access their digital assets after death, Surtees said, with respect to email some may want that deleted.

    Brian Bowman, a Winnipeg lawyer who specializes in privacy, access to information and social media law, is the incoming chairman of the CBA’s national privacy and access law section and the one spearheading the conversation about digital data rights after death.

    Access rights to social media accounts currently differ from platform to platform, he said. While Google will give parents and executors full access to a deceased person’s account, Bowman said Facebook will allow loved ones to transform a person’s page into an online memorial on demand but with limited ability to manipulate information on the site. Meanwhile Twitter, he said, will shut down an account if advised of a death.

    “For Canadians, it’s really hit and miss depending on the platform,” he said. “For people who are grieving the loss of a loved one, it just makes it so much more complicated for them and in many cases, they’re just not getting the information that common sense would dictate in some cases that they should get access to.”

    Not only could an annual birthday reminder be painful for those grieving an untimely death, he said, the parents of children who’ve committed suicide, for example, may want access to social media to try to piece together what happened.

    While legislation isn’t necessarily the answer to these problems, Bowman said the debate is long overdue and he hopes to “kick start” a discussion with industry stakeholders, social media sites and privacy watchdogs that could lead to a set of “industry guidelines” and “best practices.”

    Furthermore, as Canadians live more and more of their lives online, individuals themselves are also thinking more about their own “digital legacy,” he said.

    For example, he’s already heard of situations where individuals have laid out their digital wishes in writing. That said, there are currently no requirements to recognize a will that outlines which online accounts should be closed, which should be transferred and to whom the passwords should be given.

    “In some situations you might have a will and they’ll just say ‘that’s nice but we don’t care,’ ” he said. “It’s still very much evolving and there needs to be more discussion on it.
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  • #2
    Re: Digital Data Rights: Post Mortem

    This issue will likely come to a head in the next few years. Even supposedly technophobic Boomers have iPads, Kobos or Kindles, smartphones, etc.

    As a suggestion to those who are concerned, make sure you securely record your passwords somewhere (offline is preferable), and let your loved ones (or your lawyer) know where it is stored. That way, they'll at least have access to your accounts when you pass. It may violate the Terms of Service for your accounts, but considering that most of these sites don't seem to make it very easy for people to take over the account of a deceased loved one, it seems like the only recourse to me.