Disposing of your digital legacy -- more complicated than it appears

I have written about this issue not too long ago, but it came up again with a presentation at #RootsTech 2014 called "Your Digital Afterlife" by Evan Carroll. This presentation was apparently based on his book by the same name:

Carroll, Evan, and John Romano. Your Digital Afterlife: When Facebook, Flickr and Twitter Are Your Estate, What's Your Legacy? Berkeley, CA: New Riders, 2011.

It would be really nice if someone could solve the problems associated with digital property rights in a succinct way but as the book description states,

There are numerous legal, cultural, and technical issues that could prevent access to these assets, and if you don't take steps to make them available to your heirs, your digital legacy could be lost forever.

Neither of the authors of this book are attorneys. They are designers and researchers.

Let me list some of these problems:

• Each state in the United States and every other country in the world has its own unique laws concerning probate or the transmission of property interests, including all forms of digital property, from a deceased person to his or her heirs.
• Each of the websites online hosting individual files has its own unique set of Terms of Use.
• Many of these online websites, including the large genealogical database and tree hosting sites, have specific procedures for claiming rights to online files after the death of the original user.
• Each "user based" website likely has its own login and password and some of these websites are locked in to a single user computer and will not work even with a login and password from a different computer without a verification from the original user's email.
• Some online websites "lock" the data on their website if they find out the user has died.

In addition to these obstacles, many U.S. state legislatures are considering expanding local state laws to include some aspects of digital property rights. Without a legal solution to the above problems, "taking care of your digital affairs" is virtually impossible. I hate to seem negative, but the present legal climate for the probate of digital property is little short of a disaster.

One of the thorny problems involves what is called the "choice of laws" issue. That issue succinctly stated is this: where will any disagreements over the digital assets be litigated? Time for a hypothetical. Let's suppose you live in Arizona. Let's further suppose you have substantial digital assets on Google in some form or another including Gmail, YouTube videos, Google+ Albums of photos and a huge collection of online digital books in Google Play. As I have reviewed previously, Google may require you to go to court and have an administrator/personal representative of your estates appointed to deal with the succession of the digital property online. See Accessing a deceased person's account set out at the end of this post. Google's Terms of Service also include these policies include the following:

The laws of California, U.S.A., excluding California’s conflict of laws rules, will apply to any disputes arising out of or relating to these terms or the Services. All claims arising out of or relating to these terms or the Services will be litigated exclusively in the federal or state courts of Santa Clara County, California, USA, and you and Google consent to personal jurisdiction in those courts.

Do you know what the laws in California provide concerning your digital assets? Understand that this is only one issue with one web company. Multiply this times hundreds or thousands. Here is the rest of the story from Google:

Accessing a deceased person's account

If an individual has passed away and you need access to the contents of his or her Google account, in rare cases we may be able to provide the account content to an authorized representative of the deceased user. We extend our condolences and appreciate your patience and understanding throughout this process.

At Google, we’re keenly aware of the trust users place in us, and we take our responsibility to protect the privacy of people who use Google services very seriously. Any decision to provide the contents of a deceased user’s account will be made only after a careful review, and the application to obtain account content is a lengthy process. Before you begin, please understand that Google may be unable to provide the account content, and sending a request or filing the required documentation does not guarantee that we will be able to assist you. If you are the authorized representative of a deceased user and wish to proceed with an application to obtain the contents of a deceased user’s Google account, please carefully review the following information regarding our two stage process:

Part 1

We require the following information:

1. Your full name
2. Your physical mailing address
3. Your email address
4. A photocopy of your government-issued ID or driver’s license
5. The Gmail address or Google username (which is typically an email address) of the deceased user
6. The death certificate of the deceased user. If the document is not in English, please provide a certified English translation prepared by a competent translator and notarized
7. The following information from an email correspondence that you have received at your email address, from the email address associated with the Google account in question:
• The full header from the email message. See instructions on how to find headers in Gmail and other webmail email providers. Copy everything from 'Delivered-To:' through the 'References:' line
• The entire content of the message

Mail or fax this information to:
Google Inc.
Gmail User Support - Decedents’ Accounts
c/o Google Custodian of Records
1600 Amphitheatre Parkway
Mountain View, CA 94043
Fax: 650-644-0358

Part 2

Upon receipt of this information, Google will review your request and notify you by email as to whether or not we will be able to move beyond Part 1 to the next steps of the process. If we are able to move forward based on our preliminary review, we will send further instructions outlining Part 2. Part 2 will require you to get additional legal process including an order from a U.S. court and/or submitting additional materials. Please note that submitting these materials will not guarantee that we will be able to provide account content so we recommend not embarking on Part 2 until you hear back from us regarding Part 1. Also, some information for some products may not be available or provided even if steps 1 and 2 are completed successfully. Because of our concerns for user privacy, if we determine that we cannot provide the account content, we will not be able to share further details about the account or discuss our decision. Please note that Google may change what is required from time to time and in particular cases.