DYING, SURVIVING, OR AGING WITH GRACE

Several U.S. states are considering legislation that would give personal representatives legal possession of Facebook profiles, Twitter accounts, and other online information after a death, reports BBC News (Living online after death faces Nebraska legal battle, 1-3-12 -- do watch the BBC video). “But privacy experts and lawyers representing communications companies say the bill needs to clarify whether an executor should be named in a will before online accounts are handed over.” Nebraska, in particular, is trying to establish such a law.

The Death and Digital Legacy site has been posting stories about this issue, providing links to new stories on the topic, highlights from some of which I am posting here, as I get up to speed on the subject.

Facebook dead serious about Neb. bill. Paul Hammel (Omaha.com, World-Herald Bureau, 2-1-12) reports that Facebook pages are set up so you control who can and cannot be your "friend." You control who can access private information on your page. So what happens when you die? A state senator trying to clarify that is finding out it's a much bigger issue than he imagined. State Sen. John Wightman of Lexington — who readily admits his "tech IQ is about zero" — has been visited by a BBC film crew because of the issue. When informed of a death, Facebook puts a page in a “special memorialized state” so others can post messages of condolence. It will also remove a page at the request of the family of the deceased. But it will not provide passwords or log-in information to next of kin unless directed to do so in a will or by law. (Go to originals for exact quotations because I am mostly quoting from the stories here but some of the sentences are paraphrased to condense.)

Form to report a death to Facebook

Alissa Skelton, in Facebook After Death: What Should the Law Say? (Mashable, 1-26-12) reports that the Uniform Law Commission recently approved a study committee on fiduciary power and authority to access digital property and online accounts during incapacity and after death. Uniform laws are created when there is little current legislation for states to follow. “Fiduciaries need clear powers to act on behalf of the individuals in the digital world” after death, said Minnesota commissioner Gene Hennig. “There is a crying need for a uniform law that would grant a unified way of addressing the issue throughout the country.” Only five states — Oklahoma, Idaho, Rhode Island, Indiana and Connecticut — have created laws governing digital asset management after death. A bill in Nebraska “proposes a dead person’s personal representative — appointed by the court or the heir to the estate — be granted access and control of digital accounts belonging to the dead person.”

WGRZ.com in New York reports: Social Media Users Can Create "Online Executor" In Will (2-5-12). Brooklyn Assemblyman Felix Ortiz (D- 51) introduced legislation in February that would allow people to designate an "online executer" in their will who can terminate social networking accounts. Most social media sites have death policies. If family members or friends complete a form and provide proof of death, like an obituary, news article, or link, Facebook accounts can be continued post mortem, deleted, or memorialized They don't need a password. Users can also pay sites like Entrustet, Legacy Locker and Data Inherit (Secure Safe) to do the deleting for them and take the burden off family members.

Digital Estate Resource is an online repository for estate lawyers who need to learn about how to incorporate digital assets into estate planning. One of the site's pages tracks developments in state law.

Grappling with Tradition (Death and Digital Legacy.com 5-11-11) emphasizes that it is the wild West out on the digital divide, with no laws to govern behavior.

Here are a couple of "final posts," by bloggers who were dying:

• Derek K. Miller’s Final Post (archived on Death and Digital Legacy). “Here it is. I'm dead, and this is my last post to my blog. In advance, I asked that once my body finally shut down from the punishments of my cancer, then my family and friends publish this prepared message I wrote—the first part of the process of turning this from an active website to an archive.” Derek Miller blogged his way through stage 4 metastic colorectal cancer. So many people read his last post that the site crashed.

• Final blog entry of Mac Tonnies, Posthuman Blues (Dispatches from a world on the cusp of terminal dissolution)

The Library of Congress has provided practical advice, with Personal Archiving: Preserving Your Digital Memories. good advice on how to preserve your own digital materials. Keep in mind that "digital archiving" is not the same as "preservation." If you want to keep a copy of a photo for posterity, be sure to preserve at least one paper copy. Digital technologies change (what works today may not exist 100 years from now) and the digital universe is not secure.

Keep that in mind in particular when you read stories like this: Services aim to preserve legacies in the digital afterlife (Scott Canon, Kansas City Star, 4-2-12) . LiveOn, a Kansas City-based start-up, is among a growing group of companies that are looking to make a business of your virtual afterlife — an online service to display the photos, videos and other markers of a life. (“If Facebook and Ancestry.com had a child, that would be us.”) It will offer the profiles for free, but make money by charging to digitize the online artifacts and sell users online templates to put memories in artful focus.

More such services are now vying for this strange new market. Feel free to tell me about them in the Comments section. This is by no means an endorsement. In my opinion these sites may be great for sharing photos and other memorabilia (including videos), but there is no way to guarantee that the company will endure (it is hard for such companies to become or remain profitable--where will the money come from?) or keep such material posted, or change it so that it is viewable or "listenable" (if there is such a word) on new forms of media. Someone in the family should also keep the originals in their home or another safe place, perhaps providing copies to others in the family (so they are safe in case of fire, theft, flood, etc.).

But preservation is a whole other subject, to be covered separately. This is about sharing, and who has the right to keep sharing, or stop sharing, after a person dies. Something to think about.

~ Pat McNees, with thanks to the publications quoted, for providing such thoughtful stories.