Your lawblogger recently attended a seminar given by Evan Carroll, the author of “Your Digital Afterlife”, a book speaking to the growing issues that have arisen as our activities on line have continued to branch out and multiply. You may not have considered the nature and volume of your pictures stored on Facebook or your years of email on Gmail, Yahoo or the other internet service providers. What happens to them if something happens to you?
It is years since we could purchase film for cameras which took pictures which we could store in our homes. For the twentieth century, photographs were the way in which we all kept pictorial histories of our families. Since the advent of the smart phone, complete with its own digital camera, printed photographs hardly exist. We generally take our pictures and store them digitally, either in the cloud, on Facebook or other similar services. These family pictures are usually stored on websites which we do not own and are password protected. Anyone who has lost a home as a result of a fire or some other disaster will tell you that the most priceless items of personal property which were lost are the family pictures which simply cannot be replaced. Today, you could replace these pictures by getting copies from the online service where they are stored —but not if the passwords were no longer known. Without the legal ability to recover these passwords and the pictures they protect, you could lose the link to the most cherished memories of your loved one.
Are you aware that these on line custodians of your correspondence, pictures and memories have policies concerning the ability of your next of kin or legal representatives to recover and keep –or delete– these items? The first hurdle to recovering this information is having the password…..which most folks cannot find when a loved one has died. This is especially true since we are learning to use a multiplicity of passwords which we are now schooled to change frequently. In the past, Facebook has required next of kin to get court orders for passwords and the contents of an account. While they are moving towards a procedure to gain access to an account, this has required litigation in the past, an extremely aggravating and painful experience for the families of servicemen and women killed in combat after years of communicating by email, Facebook and other services.
Many states are in the process of developing a legal process to deal with these issues including drafting uniform legislation. At this time, there is no uniformity in the laws of the various states as to how to treat digital assets. In the meantime, we should keep inventories of our passwords and leave instructions permitting our legal representatives to obtain our digital assets . These are truly uncharted waters and we should be aware of that.