The Concept of Digital
Inheritance in Cyberspace
By
S J Tubrazy
Abstract:
Digital inheritance is getting
weigh with emergence if social media interaction and getting huge valuable data
stored in cloud computing. In fact it does furtherance the expectancy of passing
over digital assets to legal heirs. Digital data includes passwords, digital
contracts, credit card numbers, online bank accounts, digital receipts,
pictures, etc.
Subject may be new; nevertheless,
the concept is ancient one, the universal succession 1 given by the Roman law 2
which means that in inheritance law the heirs enter into the legal position
regarding property rights of the testator by law. Digital Inheritance 3 means,
“electronic virtual assets belong to an individual that are transferred upon
his/her death to a designed heir” these virtual assets typically available in
defined cyberspace world 4. Digital objects 5 usually refer as data sets that can be inherited can include
passwords, websites, documents, online gaming IDs, social media accounts and
emails, digital contracts, digital receipts, digital graphics, or anything else
that a user has access to primarily digitally.
·
Deceased User Policy:
There is still need to have
uniform deceased user’s policy 6 for electronic medias regulated in cyberspace.
Different social medias have different deceased user’s policies like twitter
does not allow to access the deceased user profile account 7. They deactivate
the deceased user account if someone verified them about the user’s death or provide
them the user’s death certificate. Facebook also deletes a deceased user's
profile if verified by family member.
·
Legal analysis:
Under the concept of universal
secession 9 digital inheritance requires digital data takes part of the
descendant's estate wherein heirs enter into the legal position regarding
property rights of the testator by law. Subjective rights 10 as available in
Switzerland that are statutory rights which are necessary part of descendant’s
estate. The following characteristics are certain to constitute digital
inheritance in the cyber world.
i) Physicalessness
Characteristic:
The actual hold of digital
properties / assets may constitute subjective rights but the major question is
of non – physicalness 11 character of digital data which may not be subjective
property right 12. In order, that such data falls into the descendant’s estate,
the testator must have digital possession 13 under safe unique identity account
over these virtual digital data. Physical possession is correlate object which
may be understood literally in the terms of virtual possession of digital data.
.
ii) Server’ server is trustee:
In process to create digital
inheritance in cyber space the testator’s saved digital data is transferred to
a service provider to digital library on the service's server being the service
server as trustee. In such case, that the testator has had access to the
digital data e.g. online with a password. In that situation the password is an
aid for access, which creates possession in a legal sense. Then the access to
the digital data falls into the decedent's estate.
·
Manageability by Testator:
Where a testator wants to dispose
of its inheritance of digital data 14, he can make it specific in its life time
instructing the web service provider, so being sole possessor of digital assets
15 and having full control over passwords and access he may pass the key to its
assignees or agents.
·
Analysis with reference of laws of Switzerland:
16
As soon as the assignee does
notice of his digital data the other heirs may get knowledge of the existence
of digital data and will be authorized (laws of Switzerland) to have legal
title as a right, the legal heirs nevertheless entitle as right to the declared
will of testator, this protects legal fraction of each heir if the digital data
has pecuniary value. In Switzerland online solutions are available there. Cyber
Legacy Locker 17 stores all your
information in the cloud and requires the client to name two different people
to contact in case of death. That restricts anyone from trying to claim the
client has died in order to get to their secret relevant data. Legacy Locker
also lets the client name different beneficiaries for different online
accounts. A similar offering, Secure Safe, is from Switzerland — and the Swiss
know their way around secure accounts.
·
Maintaining backup of digital inheritance:
A digital vault 18 having uniform
policies for save custody and relinquishment, being maintained in cyberspace 18
may be best option to create regularly a
backup of the most important assets and deposit it offsite therefore authorized
a single person that may post-mortem share out digital assets. On the proper
filing of application by the legal heir of testator the process of
relinquishment of may contemplate of handing over the digital assets which may
confirm the legal identity of legal heirs. The digital estate planner 19 may
sole entity to entertain the application filed by legal heirs and allow it
after consideration the reason may be given by the digital estate planner for
admission of application. The server service provider shall be certain to
entertain application for relinquishment of digital data after approval by the
digital estate planner.
·
The Case of Benjamin Stassen: 21
Benjamin Stassen committed suicide
without leaving a diary note. As personal representatives of his estate, his
parents sought access to his online records for an explanation as to why he
committed suicide. They contacted Google and Facebook asking the companies to
release their son's passwords so that they could access his G-Mail and Facebook
accounts. Both companies refused on the grounds of privacy. Benjamin Stassen's parents obtained a Court
Order forcing Google and Facebook to give them access to their son's records.
Google complied with the Court Order. However, whilst the Order released
Facebook from their duty of client confidentiality, the company is standing by
its policy of not allowing personal representatives access to accounts.
Commentary:
Legal analysts commented that recent
court orders can change the nature of user agreements. Online companies’ user
agreements are contracts with the user that typically guarantee privacy and
prohibit account access to others beside the user. There is almost no binding
legal precedent out there when it comes to digital assets. It’s a concern of
internet service providers being caught between privacy and the meaning of
their contracts and being faced with a court order to which there could be
quite severe penalties if they don’t comply with it. Some of the ones that we
expect to be passed on, like getting access to online bank account statements,
doing online bill paying, those probably we would expect others to be able to
take control over. Many of us probably think that once we die, our online accounts
should either be memorialized or deleted entirely. Online social medias do
assume that the user wants privacy, there is all kinds of advice on passwords
and password strength to make sure that there is no unauthorized use. Social
media website Facebook has two options for a dead user’s account. The first
allows an account to be memorialized, which leaves the profile up so that
friends and family can leave posts in remembrance, but restricts the profile
and associated content to the Facebook "friends" that the deceased
had while alive. A proof of death must be provided for an account to be
memorialized. In some instances, Facebook allows family members to have an
account deactivated. Other companies have different policies regarding a
deceased person’s online account. According to Google’s web site, in rare
cases, they may provide the content of a deceased person’s account to an
authorized representative of the person. Meanwhile, Yahoo says on its site that
all accounts are non-transferable and it will delete an account when they
receive a death certificate.
References:
1. Succession by which an estate descended in intestacy to
the heirs in mass is universal succession. In universal succession, heirs
divide the property among themselves and pay the creditors. Pursuant to Section
3-312 of the Uniform Probate Code, the heirs of an intestate or the residuary
devisees under a will can become universal successors to the decedent's estate
by assuming personal liability for taxes, debts of the decedent, claims against
the decedent or the estate, and distributions due other heirs, devisees, and
persons entitled to property of the decedent. Minors, incapacitated, protected,
or unascertained persons are excluded. Heirs or residuary legatees are entitled
to take possession, control and title to a decedent's estate by assuming a
personal obligation to pay taxes, debts, claims, and distributions. See at
http://definitions.uslegal.com/u/universal-succession/
2. Roman law, the law of ancient Rome from the time of the
founding of the city in 753 bce until the fall of the Western Empire in the 5th
century ce. It remained in use in the Eastern, or Byzantine, Empire until 1453.
As a legal system, Roman law has affected the development of law in most of
Western civilization as well as in parts of the East. It forms the basis for
the law codes of most countries of continental Europe (see civil law) and
derivative systems elsewhere. See at
http://www.britannica.com/EBchecked/topic/507759/Roman-law
3.S J Tubrazy defines Digital inheritance at
http://dictionary.reverso.net/english-definition/Digital%20Inheritance
4. A progressing virtual world of global computers having
networks of interdependent information technology infrastructures,
telecommunications networks and computer processing systems in which online
interactions takes place defined by S J Tubrazy see at
http://dictionary.reverso.net/english-definition/Cyberspace%20world
5. Cyber object is
virtual component in cyberspace which may be in any form and may execute any
function, solely or partially see at
http://dictionary.reverso.net/english-definition/Cyber%20object
6. Dealing with the Digital Remains of the Dead by Damien
McCallig
http://www.deathwithdignity.org/2014/01/09/dealing-with-the-digital-remains-of-the-dead
7. Contacting Twitter about a deceased user, see at
https://support.twitter.com/articles/87894-contacting-twitter-about-a-deceased-user
8. Deactivating, Deleting & Memorializing Accounts, see
at https://www.facebook.com/help/359046244166395/; Dealing with a Deceased's
Social Media Accounts, see at
https://www.concentrafinancial.ca/documents/trust/etr/800-692.pdf
9. Succession by which an estate descended in intestacy to
the heirs in mass is universal succession. In universal succession, heirs
divide the property among themselves and pay the creditors. Pursuant to Section
3-312 of the Uniform Probate Code, the heirs of an interstate or the residuary
devisees under a will can become universal successors to the decedent's estate
by assuming personal liability for taxes, debts of the decedent, claims against
the decedent or the estate, and distributions due other heirs, devisees, and
persons entitled to property of the decedent. Minors, incapacitated, protected,
or unascertained persons are excluded. Heirs or residuary legatees are entitled
to take possession, control and title to a decedent's estate by assuming a
personal obligation to pay taxes, debts, claims, and distributions. See at
http://definitions.uslegal.com/u/universal-succession/; "It may be that
Lloyds LJ's reservation in relation to
universal succession was intended
to relate only to the question of consent rather than the question of notice.
But if the consent of the other party to the transferred contract is not
necessary in a case of universal
succession (as in manifest it cannot
be), it becomes clear that the notice is no more than at most a procedural
requirement. The question whether any such notice is a matter to be resolved by
the law of the forum. English law does require such notice and it has now been
given. In the Baytur S.A. case the rejected argument was that the assignee had
automatically become a party once the assignments was effective in equity. All
I decide in this case is that the merger did not automatically kill the arbitration.
See at Republic of Kazakhstan v Istil Group Inc [2006] EWHC 448 (Comm) (03
April 2006) URL: http://www.bailii.org/ew/cases/EWHC/Comm/2006/448.html Cite
as: [2006] EWHC 448 (Comm), [2006] ArbLR 41
10. National Reports on the Transfer of Moveable in Europe
‘Notion of ownership and types of property rights Page 375’Netherlands,
Switzerland, Czech Republic, Slovakia, Malta, Latvia by Wolfgang Faber,
Brigitta Lurger
11. Intangible Assets
see at http://www4.nau.edu/comptr/policies_procedures/com140.html
12. A subjective right is a power or force that inheres in
an individual, and an objective right is one that is granted to a person by
law, whether human or divine, The History of Rights in Western Thought by
Kenneth Pennington see at http://faculty.cua.edu/pennington/Law508/tierney2.htm; Property and Protest: Political Theory and
Subjective Rights in Fourteenth-Century England by Cary J. Nederman see at
http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=5317292
13. Actual hold of digital assets with or without lawful
title defined by S J Tubrazy at
http://dictionary.reverso.net/english-definition/Digital%20possession
14. Inheritance Laws
and Rights of Heirs, see at
http://bighow.net/1193678-Inheritance_Laws_and_Rights_of_Heirs.html
15. Pirate Attitudes: SOPA, PIPA, and the Struggle to
Control Digital Properties by Davis Smith see at
http://scholarlykitchen.sspnet.org/2012/01/18/pirate-attitudes-sopa-pipa-and-the-struggle-to-control-digital-properties/;
16. 5 tips for
digital estate planning By TOM NAWROCKI see at
http://www.lifehealthpro.com/2013/10/10/5-tips-for-digital-estate-planning?t=life-sales-strategies&page=2
; final paper succession by Sheila Padaoan Garcia see at
http://www.scribd.com/doc/183742284/final-paper-succession-docx ; Concept of a
digital will to pass on online assets is yet to catch on in the country Shelley
Singh see at
http://articles.economictimes.indiatimes.com/2014-03-29/news/48684234_1_facebook-account-digital-assets-digital-will
17. Cyber Legacy Locker is the safe and secure way to pass
encrypted access key of online accounts to authorized assignee defined by s j
tubrazy see at
http://woerterbuch.reverso.net/englisch-definitionen/Cyber%20Legacy%20Locker
18. Technology Heirlooms? Considerations for Passing Down and
Inheriting Digital Materials see at
https://www.google.com.pk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=6&cad=rja&uact=8&ved=0CEUQFjAF&url=http%3A%2F%2Fresearch.microsoft.com%2Fpubs%2F157558%2Fp337-odom.pdf&ei=1TndU7ObFYmp0QWJ_YGgAw&usg=AFQjCNEj-53MY7bW-zuPnq6INO2d3DuSkA&sig2=qhup8yWKrsDOqOplcJXazQ
19. Digital vault is a properly secured encrypted system
where digital assets are saved defined by s j tubrazy at
http://dictionary.reverso.net/english-definition/digital%20vault
20. Digital estate Planning is the process having uniform
rules of envisaging and arranging for the clearance of digital assets during a
person physical life under virtual identity defined by s j tubrazy see at
http://dictionary.reverso.net/english-definition/Digital%20estate%20Planning
21. Leaving a digital legacy in your Will by Oliver Embley
see at
http://wedlakebell.com/articles-and-comment/2014/05/02/leaving-a-digital-legacy-in-your-will/
; Creating A Digital Inheritance For Online Assets And Personal Data see at
http://www.mondaq.com/x/238876/wills+intestacy+estate+planning/Creating+A+Digital+Inheritance+For+Online+Assets+And+Personal+Data
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