Keeping your digital life organized is tricky. Passwords here, files there, a couple of flash drives in the junk drawer.
Imagine what it will be like for someone to make sense of it after you die: photos from family trips posted on Flickr, e-filed tax return PDFs tucked in a desktop folder, maybe even bitcoins stashed who knows where.
Untangling this digital clutter makes the task of cleaning out a deceased loved one’s house seem relatively easy. At least you can see what’s there.
Even if survivors have a pretty good idea of what’s where online, accessing this information may still be difficult — or impossible — thanks to a combination of federal privacy rules and terms of service for digital services. The result? Anything from financial headaches to prolonged heartache.
It’s an increasingly common problem, said James Lamm, an estate planning attorney with Gray Plant Mooty in Minneapolis. He’s become a national expert on the topic, working with a group of lawyers to update state laws, meet with tech companies and clarify federal privacy laws related to digital footprints after death.
“A lot of these laws were passed before Google or Facebook or Twitter existed,” said Lamm, who blogs about the topic at digitalpassing.com. “Laws just have not kept pace with the digital world we live in these days.”
Inconvenience and heartache
He can rattle off one example after another. Some are matters of inconvenience. For instance, trying to settle financial accounts after death when bills are tied to online bank accounts.
“In the past, we’d use the U.S. mail. We’d watch the mailbox for bills and statements to come in,” Lamm said. “We don’t have that anymore if it’s locked up in the digital world.”
Others are sentimental, even heart-wrenching, like an Orono family trying to access their son’s text messages and e-mails to try to understand his death from hypothermia.
“Nobody should have to face the roadblocks that we’ve had in just trying to see this stuff,” said Kristi Anderson.
Her son, Jacob Anderson, a 19-year-old freshman at the University of Minnesota, died of hypothermia in December. His body was found on the riverbank near the Stone Arch Bridge, but it’s unclear how he ended up there after walking a friend home from a party. Jacob’s death was ruled an accident. His parents turned to his smartphone for answers, but were denied access to his digital data.
The family launched an online petition in September, “Allow Access to Jake’s Digital Data,” asking for support to change laws governing access to digital property after death. It’s garnered more than 3,900 signatures.
Kristi Anderson’s main goal is to find closure.
“I’ll keep paying the phone bill until the day that we can get into it successfully,” she said.
But she’s also eager to advocate for legal change that can help others avoid her family’s pain.
“It’s going to impact everyone,” she said. “More and more of us are using the cellphone as our photo albums, our phone books, our filing cabinets.”
Lamm hopes the Minnesota Legislature picks up the issue of digital property after death in 2015. Delaware has already adopted the Uniform Fiduciary Access to Digital Assets Act — giving personal representatives access to data to settle an estate — and Lamm said officials from about 20 states, including Minnesota, are reviewing it. He and Gene Hennig, another attorney from Gray Plant Mooty, helped draft the language.
But state laws are just one piece of the puzzle. There are still federal privacy and computer crimes laws to consider, and while there are a couple of court cases winding through the system that could illuminate access, it will be a while before there’s any resolution.
Until then, here’s what Lamm suggests for those who want to get their digital possessions in order:
• Make a list of your digital property, including online accounts, user names and passwords, and store it somewhere safe. Keep it updated.
• If you have anything valuable stored in the cloud, regularly back it up on your computer or a flash drive. That leaves two options for accessing it.
• Amend your will or other estate planning documents to specify who should have access to digital assets, from social media to banking to iTunes.
Even then, Lamm said, there’s no guarantee the tech companies that hold the data — and fear expensive penalties for violating federal privacy laws — will turn it over. But it’s a start.
“Digital assets shouldn’t be any different than your real estate or your bank accounts or even your written diary,” he said.
If you don’t want your family reading your e-mails? Specify that, too.