From San Jose Mercury News, June 1, 2005 also from the Taiwan News.

Pondering new puzzle: who inherits digital data

Knight Ridder Newspapers

SAN JOSE, Calif. - (KRT) - When we die, we leave many things behind. These days, that includes a digital life.

There are private online journals, e-mail missives to long-ago loves and important financial documents - not to mention records of instant-message chats and Web surfing habits.

"People need to be aware of the fact they are leaving a digital trail,'' said Roy Litherland, a San Jose attorney who specializes in estate planning and living trusts. Indeed, new software programs like Google Desktop Search literally record every move people make online or on their computers.

Who is entitled to that material when you die is a question now being grappled with in the legal world, by Internet service providers as well as by family members. There are no laws that specifically address digital property.

But in the digital era, people must think about their online assets. "I don't know how you completely wind up someone's affairs if you don't have access to someone's digital material,'' said Cheryl Burtzel, an Austin, Texas, attorney who is an expert on law and technology.

After Lance Cpl. Justin Ellsworth of Michigan was killed Nov. 13 while inspecting a bomb in Iraq, his father, John Ellsworth, wanted access to his son's Yahoo e-mail account. But Yahoo, whose policy is to terminate e-mail accounts upon a user's death, would not give him the material until a probate judge ordered the Sunnyvale company to do so.

Danny O'Brien of the Electronic Frontier Foundation, a San Francisco non-profit that often gets involved in digital-privacy issues, said it's difficult to find the right balance between personal privacy and a family's desire to get all of a loved one's possessions.

"We are sympathetic to the pain families go through,'' he said. "On the other hand, there are a lot of things people want to keep private from their close relatives. You need to have some way to do that.''

Legal experts say that people need to consider how they want their digital information distributed, and to whom - if at all - after they die. They should then leave detailed instructions for the handling of their digital property.

For example, if you conduct your financial business online and don't keep paper records of transactions or accounts, you should provide that information - and account passwords - for your survivors in a document separate from your will, perhaps stored in a file cabinet or even a safe-deposit box.

People might even want to name a trustee to handle digital information, with instructions on what should be destroyed and who should gain access to e-mails and other material, said Gerald Ferrera, executive director of the Cyberlaw Center at Bentley College in Massachusetts.

While many people view their e-mail and other digital information as private, even something they'd be loath to share with family members, the correspondence is really no different from paper letters stored in a closet or anything else in a person's possession when they pass away, said Henry Perritt Jr., an authority on cyber law at Chicago-Kent College of Law.

Digital information "is inheritable like any other property,'' he said.

Internet service providers have developed privacy policies that reflect the growing importance of digital information to individuals and their families.

"They don't want to be in the position of having to decide issues of probate law,'' Perritt said.

America Online, with 28 million members, has assigned a full-time employee to handle next-of-kin requests. Before releasing account information, the company requires a copy of the death certificate and documentation proving the person requesting the e-mail information is the legal beneficiary or the estate representative, said America Online spokesman Nicholas Graham.

"These are the kinds of decisions we absolutely want to get right,'' he said.

MSN Hotmail will provide account contents on CDs or floppy disks to relatives of deceased members after it verifies the legitimacy of the request, said Brooke Richardson, MSN lead product manager, in a statement. "We have tried to institute a policy that is very focused on privacy, but at the same time honors the requests of bereaved family members.''

Yahoo would not comment on its policy.

John Ellsworth's attorney, Brian Dailey, said Yahoo acted "If they had released the e-mails before the court order, they could have gotten into trouble.''

While the process may be cumbersome for families, it's the best way to safeguard against abuses, said Brian Smith, chief technology officer of Hushmail.com, a British Columbia-based Internet service provider that offers encrypted e-mail.

"If you start allowing exceptions, security could be compromised,'' he said. "The easiest way to hack a system is through social engineering - you get on the phone and you lie until someone believes you.''

Smith's company will not release information to third parties unless they have a legal order issued by a British Columbia court.

Still, sometimes family members can circumvent such procedures if they know the deceased's passwords or can guess them.

That's what Valerie Hawkins of Chicago did. Her brother, Aaron Hawkins, died in September. She was able to access his e-mail accounts by figuring out the answers to his "forgot password'' hints. She and her family also decided to keep his blog up and running.

She reviewed his financial dealings, but deliberately avoided personal e-mail. "It was important to just get a handle on his accounts to see what it was he had so we knew whom we had to contact,'' she said.

Obtaining the digital property can be more than an act of financial housekeeping. In some cases, a Web address might even have trademark or some other financial value, said estate lawyer Litherland.

But, he added, "for most of us, passing away will mean our digital existence passes away, too.''

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© 2005, San Jose Mercury News (San Jose, Calif.).

Last modified date and time: 06/26/2005 15:40