Digital Legacy

In these days of heightened environmental consciousness, you probably have some notion of what your ‘carbon footprint' is; however, few people consider their ever-expanding ‘digital footprint' or its ramifications in the event of their inevitable demise.

Not so many years ago, when a loved one passed away, it was a relatively easy matter to determine the extent of their assets, given their inherent tangibility. An old shoebox or two full of photos, some letters, personal articles and major assets including real property, insurance, and bank account balances were all that need be considered in setting an estate. Now, with the advent of the Internet and the ubiquity of all things digital, this scenario has become significantly more complex.

Privacy

The first and most obvious digital asset that almost everyone possesses, yet few consider in this context is email. Would you wish your entire history of email correspondence be exposed to your family? If this data resides on your personal computer, there isn't much question as to their being able to view it, save in the event you have made provisions for limiting access or its destruction or with your executor.

On the other hand, what happens in the event this correspondence is stored on the servers of an email service provider such as Yahoo!, Hotmail or Gmail? This very question was court tested in 2005 after the parents of KIA Marine, Justin Ellsworth sued Yahoo! in an effort to gain access to the contents of his email account. Yahoo! resisted, citing provisions in its terms and conditions, but ultimately complied with a court order to provide the family with what they sought. Many privacy advocates were horrified by this decision, stating that had the Marine wished to share the contents of his email with others, he would have carbon copied them at the time of transmission.

Of course, these exact same issues are raised in connection with PDAs, cell phones, and IM clients. SMS messages, contacts, and calendar entries are all easily disclosed on portable devices, while instant message sessions from clients like Google Talk are recorded in their entirety and even searchable by keyword on a user's Gmail account! Surely this is something one ought consider when engaged in estate planning.

Value

By contrast, what if you wish your correspondence to be preserved by your estate? Perhaps your emails have sentimental worth to your loved ones, or even some historical significance attached to them –  rendering them monetarily valuable. Letters have certainly sold at auction for significant sums; the recent example of John Wilkes Booth's (Lincoln's assassin) message to a friend selling for $68,000 definitely proves this fact... though it is unclear as to how this would translate in the electronic medium.

Would your relatives know how to gain access to these materials? Would they have to go to court to do so? Are they aware of all the different email accounts you might have? Would they even be cognizant of the fact that many email service providers permanently delete the contents of inactive accounts – some in as few as 60 days?

What about other digital assets?

Blogs are often monetized by way of advertising, and their content is by no means secure after extended periods of inactivity. How do your relatives take control of this revenue stream or ensure the preservation of your digital legacy when it comes to this medium? Have you thought about your content on social networks? Does this indefinitely survive you for purposes of posterity? Most likely not.

What about websites owned by the deceased that deliver products or services? These will happily hum along, oblivious to the demise of the creator until the hosting ISP terminates them for non-payment, potentially leaving customers in the lurch. What happens when PayPal accounts are inaccessible to relatives endeavouring to provide recompense or draw on existing balances? The domain names themselves are certainly valuable, exclusive of any content they may contain. Is your estate going to lose these as a result of your inattention to the renewal process after you are gone? I own 60 myself – are they in my will? Nope.

Digital photographs are yet another asset that demand special attention. Millions of people now store thousands of images each – generally on hard drives, removable media or online. Embedded EXIF data in these photographs is invaluable in terms of establishing the exact timeline of events in a loved one's life and often provide other priceless details about the scenes depicted for future generations.

Do your relatives know where all these photos are located? Are they technically savvy enough to handle them appropriately? Do you have private snapshots you'd sooner they not stumble across? Have you any photographs listed with stock agencies such as iStockPhoto.com? Your stock photos will continue to make money indefinitely – will your loved ones benefit?

How about music? The iPod classic holds 160GB or about 40,000 songs. Assuming you filled one with purchases from iTunes over your lifetime, that's $40,000 worth of digital music at today's prices. This certainly isn't unrealistic – I have an 80GB iPod which is almost completely full of legal music after only 1 year. Will you take this into account when planning your estate? What about the fact that this music is only licensed to you? Does this seem right? Should you be paying more attention to copyright law?

Another digital asset I am sure most have not considered as such would be virtual property in online games. For a time I sold virtual cash for real dollars, certainly for the profit – but mostly because I found it hilarious. However, some people have a less well developed sense of humor than I...  

In 2005, 41 year old Qiu Chengwei stabbed an acquaintance to death after he discovered he had stolen and subsequently sold his ‘Dragon Sabre' from the online game ‘The Legend of Mir' for $871. This underscores the fact that virtual property is taken very seriously and has real-world value which must be accounted for.

So, what to do?

While there are few resources or legal precedents upon which you may draw when considering these issues, more are becoming available all the time.  There is even a small grass roots effort being undertaken to create a system similar to organ donation in which you bequeath your intellectual property to the public domain (http://ni9e.com/public_domain_donor.php).

In short, for most, digital assets are rapidly amassing, becoming something that must be seriously reflected on when considering posterity. Don't let the control of these be wrested from you due to poor planning or inattention. Include provision for all things digital within your will or as a written supplementary for your executor to ensure your digital legacy is one of happy memories – not headaches, embarrassment and legal battles.

Originally published in HUB, The Computer Paper, March, 2008, by technology columnist, Ray Richards.

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