20/11/2012

After Death – the Legal Aspect

I wrote about Yahoo!'s policy on granting access to email accounts of users who passed away in the second article of a series on ynet.



I spoke to Shai Porat, lawyer and mediator, regarding a specific instance in which a case was brought against Yahoo!:
"It seems like a simple issue: because they are his parents, they would like access to the email account of their son, who was killed. As they see it, they are his benefactors, his heirs. Therefore, just as they received all his material goods, so they should receive all his digital 'goods' – like his email account. During the trial, John, the father, compared receiving access to his son's email account to getting access to his son's safe (if he had one).
"But the further we delve into this issue, the more complicated it becomes. Yahoo! is committed to its clients' privacy. Beyond that, they are committed to continue to guard the privacy of Justin, the deceased soldier – could it be that he may not have wanted his parents to have access to his mail?
"Furthermore, at least two people are involved in every mail correspondence. By exposing the mail he received, Yahoo! is exposing personal things written by other people and it's Yahoo!'s duty to continue to guard their privacy, even if one of the correspondents passed away".


Maybe Yahoo!'s commitment to guard Justin's privacy includes their commitment to guard his friends’ privacy as well?
"There is no doubt that the copyright of Justin's outgoing mail belongs to Justin, and so to his parents. But what is greater – his and/or his friends' right to privacy, or his copyright (and his parents' right to inherit) of his outgoing mail?
“Incoming mail is an even more complex issue, because the copyright of those emails belong to the sender and not the receiver – Justin only received the right to read the mail, he didn't receive the right from the senders to publish the mail he received or to forward it on, and therefore he cannot bequeath this right to his parents.
"Dealing with death in the digital age will probably require us to expand our concept of privacy. Each one of us has a private life and a right to privacy even after death. The question is, how can we realize this right when so much of our most private information is embodied in digital assets".

Another point we should pay attention to is that Yahoo! is also the owner of 'Flickr', the photo sharing site. This means that Yahoo!'s policy applies there too: in the case of death, people left behind won't have access to the pictures uploaded to the site – and the user's account will be deleted, unless the deceased left behind his user name and password. For some people this may be good news, as they have pictures on the site that they wouldn't like exposed and published without their control. Others, however, may regret that whole galleries of pictures they spent a lot of time and effort collecting and uploading will be erased”.

In May, 2011, the first will (according to the publishers) that included references to digital assets, was published in Wisconsin, USA.

Questions and answers regarding digital wills in Israel can be found in the second article on Ynet (in Hebrew).


Another aspect that came up in my conversation with Shai was how the law in Israel regards bequeathing digital assets:
"If it is a material digital asset, such as a hard drive, disk, disk-on-key, cassette, computer etc., it is considered the same as any other material asset and the law determines who it will go to if there is no will. Digital assets that are not material, such as articles you've written, programs you've developed, projects you've built on your computer, passwords and so on, are considered intellectual property and can be inherited according to a will or the law.
"This leads to an interesting discussion on different types of intellectual property: does the right to the data on the computer go together with the right to the computer itself? If you bought a program, can you bequeath it? The answer lies in the regulations of whoever sold the game or the subscription.
"If you have 'property' in virtual worlds, can you bequeath it? Here too the answer lies in the regulations of the creators of those worlds.
“If I bequeath access to my bank account to you, including passwords – does this mean that I bequeathed the money in that account to you or only that I allowed you access to it? Because allowing you access to the account hardly means bequeathing the right to the money.
"A distinction needs to be made between leaving the key to the safe and leaving the contents of the safe. Identically, a distinction needs to be made between bequeathing the computer and bequeathing the content on the computer. If I leave you the key (material asset), it doesn't mean I'm also leaving you the content (intellectual property)".

I checked the legal aspects with some sites and providers. The results can be found below.
Please let me know if you came across a policy that is either commendable or condemnable, or if you found lack of policy in a site expected to have a clear policy on this topic.


Zynga
The Terms of Service of Zynga, the operator of the popular games Farmville, Cityville etc., 



paragraph 1.6 deals with Use of Service. Sub-paragraph C states, "you shall not have more than one account". That means, if you have a Zynga account and another person died and left you their account, you are in effect violating their terms of service, as you now have two accounts (more about this restriction and its consequences can be found in the full interview with gamer John 'Neverdie' Jacobs).

Sub-paragraph J states, "You shall not sublicense, rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account or any Virtual Items associated with your Account to anyone without Zynga’s written permission". Meaning, you cannot bequeath your account or the digital assets within it.

Is it possible to bequeath it if you write to them ahead of time and receive their permission? I wrote to them and never received an answer, but considering the following paragraphs, the answer is probably negative:
In paragraph 1.11.2, dealing with accounts, "YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN AN ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO AN ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF ZYNGA". Zynga also reserves the right to close any account that is not active for 180 days.
Paragraph 1.4, dealing with granting a limited license to use the service, states: "Subject to your agreement and continuing compliance with these Terms of Service and any other relevant Zynga policies, such as the Forum Rules or Loyalty Program Terms, Zynga grants you a non-exclusive, non-transferable, revocable limited license". Non-transferable, meaning, it cannot be bequeathed.


World of Warcraft
The popular game 'World of Warcraft' is operated by Blizzard. Their Terms of Use are even more explicit and resolute than Zynga's:



Paragraph 9.2 states: "Account. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN THE ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO THE ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF BLIZZARD. Blizzard does not recognize the transfer of Accounts. You may not purchase, sell, gift or trade any Account, or offer to purchase, sell, gift, or trade any Account, and any such attempt shall be null and void ".

They also clarify in the game's support pages that they do "not recognize the transfer of accounts between individuals". If you have a rich world of content in this game, you won't be able to bequeath it.


The Israeli companies: Tapuz, Walla!, nana10 (hotmail), TheMarker Cafe, 012 Smile, 013 Netvision, Bezeq, Isra-Blog (nana10)
I didn't find an explicit reference to death in the policy of the Tapuz site.
In paragraph 16, where it refers to Protection of Privacy, it is stated: 'having said that, you hereby agree to allow Tapuz to reveal and \ or pass on all your details and any information, including your personal information, in accordance with court ruling'. Possibly this means they are preparing themselves for a situation similar to Yahoo!'s (the story covered in the second article), where they will be compelled by court order to pass on content uploaded by a deceased user. This includes messages in forums and communes, movies uploaded to Flix and so on.
In paragraph 20, under users' affirmations and commitments, the users are required to: 'keep secret and not reveal or pass on your private passwords (including username and login password)'. I wonder if they consider this to include the event of death: if I leave my username and password in my will, so that my loved ones will have access to content I've uploaded to the site, am I violating their policy? Or is my commitment to them valid only while I'm alive?

The Terms of Use of Walla!, the Israeli email provider, do not contain an explicit reference to the event of a user's death. Chapter C, Policy for Use of Electronic Mail, states that: "you know, and agree to, Walla! being entitled, at their discretion, to close and/or erase an electronic mail account that is not in use, and which hasn't had an electronic mail item sent from it for at least three consecutive months". That means, if you discovered your deceased loved one had an account by Walla! and you would like to access it, you may find that it no longer exists, if it took you more than three months after the death to deal with it. For more details, read the story of Chaya, a bereaved mother, in the first article on Ynet. There it turned out that the site 'Hevre' had no policy of closing accounts that were no longer in use – but that Walla! did.
Further on it states that "you know, and agree, that Walla! will be entitled, at their discretion, to hand over the details of the electronic mail account they own, according to police request or court order, and that you will have no complaint against them for handing over your personal details in such circumstances". This could be their way of preparing to deal with instances of death, but I noticed that they mention only "mail account details" and don't refer to the content. But it could very well be that if you are no longer alive, you will have no complaint to make regarding the passing on of your details.

In nana10's Privacy Policy, relevant for Nana10 mail as well as for blogs on Isra-Blog, under 'Passing on information to third parties', it states: 'nana10 will not pass your private details and any information collected regarding your activity on the site (as far as these details and activities identify you personally) on to third parties, except for the circumstances detailed here… if nana10 were to receive a court order directing them to pass on your details or information about you to a third party". This could also possibly be a preparation for the possibility of a court order to hand over the account details to the family following the death of a user. I haven't found any other reference to this in either the Privacy Policy or in the Terms of Use.

In the annex dealing the Terms of Use for Ha'aretz's group of 'The Marker' sites, which includes 'TheMarker Café', I didn't find any explicit reference to the topic of death or even any relevant reference to it. Seeing as many of the site's users upload their original content to the site, I wonder what will become of this content in the event of death. I searched under Transfer, Privacy, Rights, Intellectual Property – and found nothing.

Nana10's email is based on Hotmail, so I also checked Microsoft's Services Agreement. There too there is no reference to death, rights, bequeathing etc., but under the Privacy Policy (paragraph #5) it states that: "Microsoft may access, disclose, or preserve information … including … your personal information and content, … when Microsoft forms a good faith belief that doing so is necessary (a) to comply with applicable law or to respond to legal process from competent authorities". This also seems to be laying the groundwork for court orders directing providing access to the deceased's email account. I found no reference in the Privacy Policy either.


I found no reference, even indirect, to the topic in the Terms of Use of 012 Smile, Netvision 013, Bezeq International or Isra-Blog.  


I contacted each of these internet providers, hand-picked their policies (which indeed aren't published online anywhere), and published it in a post titled "The Israeli angle of Digital Death".


Thank you Rachel (Berman) Madar for translating this post from Hebrew to English. 

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