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Who Does our Information Belong to After we Die?

Ynet: Death on the Internet

Who Does Our Information Belong to After We Die?
Let's assume, God forbid, that you die tomorrow. What happens to your email account? Will your family receive it? Would you want your family to receive it? These questions are dealt with in the following article by the family of a war hero, two programmers and a lawyer. Digital Death – second article in a series
Published: July 22nd, 2011, 16:39

Previous article: Inside My Dead Brother's Personal Computer 

1. A war hero's email account

US Marine Lance-Corporal Justin Ellsworth, of Michigan, was killed on November 2004 while serving in Iraq. He was twenty years old. LC Ellsworth died a hero, and was awarded a Bronze Star Medal with Combat Distinguishing Device (V Device) by the US Armed Forces.

Ellsworth's job was to identify and destroy hidden roadside explosive devices. During a foot patrol he identified an improvised explosive device, operated by remote control, and called to his comrades to stay back. The device was detonated immediately afterwards and he was fatally injured. He saved 11 comrades who stood close by and an additional 4 who were further away. But this was not what made Ellsworth famous. Ellsworth became famous because of his email account.

Ellsworth had a Yahoo! email account. Ellsworth's parents wanted access to this account but Yahoo! refused, claiming it was committed to Ellsworth's privacy. The parent's countered by submitting a claim that received wide media coverage. On April 2005 they won, and a Michigan judge ruled that Yahoo! provide the family with full access to their son's email account. This wasn't exactly what Yahoo! did. The Ellsworth family received a disk from Yahoo! containing over ten thousand pages with content from his email account – but John, Justin's father, told the media that on the disk he found only emails his son had received, and not even one email he had sent – including messages Justin had sent his family.

The public discussion raised by this case raised awareness of the topic and of the different policies of email providers on this topic. AOL and Microsoft's Hotmail transfer the account to the family after the death of the account owner, and AOL state that they receive dozens of such requests each day.

Yahoo!'s policy, on the other hand, is different, and when you open an account by them you confirm the Terms of Service (and who really reads those?) agreeing that your account, the rights to your account and the rights to the content in your account end with your death and you have no right to transfer them. Yahoo! also clearly states that on receiving a copy of your death certificate, your account will be closed and all its content permanently erased.

2. The files of A. and N.

A. is twenty-eight and the owner and manager of a successful software company. Despite his age he is aware of the great importance of the information he leaves behind in the event something happens to him. He prepared a smart key, unlocking a file on his computer, and left it by friends. The file holds a form of will as well as passwords to his email and Facebook accounts, his bank account and other digital services he uses.

N., another programmer, is 49 and also aware of the importance of her digital assets. That's why she included reference to them in her will. Her lawyer holds the access passwords to her computer, her email accounts, Facebook profile, and folders containing professional information on her computer and on other servers. Once in a while, when she updates the passwords, she updates her lawyer as well. She told me that one of the reasons for this move was so that her clients wouldn't suffer in case of disaster.

I asked Shai Porat, a lawyer and mediator, how many of his clients' had so far included references to digital assets in their wills.

"You raise an interesting point," he said. "Zero".

How does the law in Israel apply to digital wills?

"Whoever wants to use the services of companies offering digital wills needs to take into account that this will is not valid in Israel according to the local laws of inheritance and wills. All transfer of assets, including intellectual property, is not valid in Israel if it is done digitally.

"A will in Israel is valid only in one of two cases: either on paper written and signed by my own hand, or on paper that was typed and printed or written by my own hand, and signed in the presence of two witnesses and in the format specified by the law (witnesses over 18 years of age, not related to the will beneficiaries etc.). The word paper in mentioned on purpose: a will that is made electronically or digitally, even if it made use of your approved electronic signature, is not valid."

And what if someone wrote in their will that they ask not to allow access to their computer, their email and so on?

"That must be respected. But you need to take into account that the beneficiaries can go against the deceased's wishes: this is identical to a case in which an author asks that his unpublished manuscripts be burned after his death, and his beneficiaries decide to publish them. They can do that because they have the rights: they inherited them legally, but decided to go against the wishes of the deceased.

"The laws of inheritance in Israel often stem from Jewish law, and the beauty of Jewish law is that laws written hundreds or even thousands of years ago are still applicable today, in digital cases. A good law is one that remains relevant despite advances in technology."

Thank you Rachel (Berman) Madar for translating these articles. 

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