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11/09/2015

New Digital Death Legislation?

If you know people in France, now would be a good time to raise their awareness regarding Digital Death issues, as "France opens up Digital Republic Bill to public comment". The telecompaper reported on September 7th: 
"France’s internet bill, announced nearly three years ago and now named officially ‘the law for a digital republic’, will be put online on 21 September, inviting comments from the public. Any proposal will be considered if it obtains a certain number of ‘likes’ on Facebook... Central to the bill is the principle of net neutrality and non-discriminatory access to content and transparency... The bill has three parts, around the themes of ‘liberty’, ‘equality’ and ‘fraternity’... The second section covers internet user rights, affirming that users’ data must be freely available to them. It will write into law the right to be forgotten for all minors, which allows them to request for pictures or other material to be taken down, rather than having to give a justification, as is currently the case. The law will also detail the conditions for a so-called ‘digital death’ to allow people to write a will for their digital presence after death... The bill is due for its first reading in parliament in early 2016". 
September 21st update: It has been postponed, will keep updating. 
September 27th update: There is a website dedicated to this bill and it's even in English. If you prefer French, it can be found here.
This is the first time I come across a "Like" competition regarding legislation, but it is a good opportunity for citizens to become involved. I don't speak French, so if any of you readers who do read it come across the relevant link, please be so kind as to send it to me (death.in.digital.era@gmail.com / Digital Dust). Fingers crossed that France will allow people to manage their own Digital Estate while they are still alive, and actively encourage them to do so. 

Here is the relevant quote
"Article 20 focuses on digital data management after death. As the Internet and social networks expand, Internet users are putting increasingly large amounts of data online. There are problems with managing this data after death as the heirs may neither know about nor have access to it.As personal data following the death of the individual does not currently have a specific legal status, it is governed by ordinary law. This data pertains to the deceased and cannot be inherited by his/her heirs who, in turn, cannot retrieve it.
The purpose of Article 20 is to enable any person, during his/her lifetime, to make arrangements for the storage and communication of his/her personal data after his/her death. People will be able to send instructions concerning the treatment of their personal data to the CNIL or to a data controller, and may appoint a person responsible for carrying out these instructions.
Moreover, ISPs will have to inform the user about what will happen to this data after his/her death and let him/her choose whether or not to transfer it to the third party of his/her choice. In the same way as Article 19, Article 20 should be coordinated with the EU’s Proposal for a Regulation on the protection of personal data which is currently under discussion".


If you know people in California, now would be a good time to alert them to Assembly Bill 691 (can also be found here), as reported on August 29th 2015 by Santa Cruz Sentinel Business, on 'Who owns your digital afterlife?. Turns out this bill is backed by "Facebook, Yahoo, AOL and a lobby group that represents Google, Microsoft and Apple" - or in other words, it's "written by and for technology companies", and not by and for people and their grieving, bereaved families. 



I admit I had goosebumps reading this article and what Marsha Mehran's father went through following her death, regarding her digital estate. 

I was very sorry to hear that there is a chance this new bill might pass in California, sad to hear PEAC are trying to push their act instead of the one drafted by ULC so we might see this in more states, horrified to realize this has already passed in Virginia in July (in modified form) and introduced in Oregon in addition to California, and even sadder to hear ULC are not standing up to them and have revised their act, which has already passed in Delaware and introduced in 26 more states, which will now be undone. The new version can be found here

Thinking this must be very difficult and frustrating for Eric Rash's parents, Ricky and Diane, who worked so hard to change the legislation in Virginia in the past (2013) following their son's death (2011), I looked it up, and - sure enough, Ricky wrote about this in March: 
"SB1450 will serve only the providers. It will continue allowing them to deny loved ones access to a digital estate... SB1450 seems to mimic the hell we went through in 2011...SB1450 was written by and for the Internet industry, not users or customers, and it will certainly not help grieving families gather memories".
This is the link to ULC's committee, and this is the link to the actual act


The original post 

The revised post 


September 28th update: 
The final revised post. 
The final act can be downloaded from here


I feel like pulling my hair out by the roots: 
"The Revised Uniform Fiduciary Access to Digital Assets Act clarifies the application of federal privacy laws and gives legal effect to an account holder’s instructions for the disposition of digital assets. While the 2014 UFADAA provided fiduciaries with default access to all digital information, the revised act protects the contents of electronic communications from disclosure without the user’s consent. Fiduciaries can still access other digital assets unless prohibited by the user".
A comparison between the original act - the uniform fiduciary access to digital assets act (= original UFADAA), the privacy expections afterlife and choices act (= PEAC) and the revised uniform fiduciary access to digital assets act (= revised UFADAA) can be found here, and an interesting read about this situation can be found here: "Two groups battle it out to create uniform national rule for fiduciaries to access digital assets". 

Alessandra Malito, Investment News

At the time, when ​the technology companies and privacy lobbies objected to the UFADAA, ULC had a ready reply, and I was hoping they would stand firm against the opposition. 
Here is an interesting post by Jeffrey R. Gottlieb, a probate attorney, about the process the bill went through in Illinois in specific and the situation in general. I don't know him, but I already like him: "I won’t pretend to truly understand the Illinois legislative process (and if I did I’d probably need to shower more frequently)". He points to another interesting read about the situation by The American Bar

Turns out the bill didn't pass in any of the 26 states it was introduced in because of paid lobbyists. Why aren't the voices of bereaved families heard as well? Simply because they lack the financial means the big companies can afford? This is infuriating. 

If maintaining the wishes of the deceased are so important to you, Yahoo, AOL, Google, Microsoft and Apple, why don't you ask them directly what their wishes are? Here is my suggestion: 


Google and Facebook have some sort of an in-house solution (although not a perfect one) - Inactive Account Manager and Legacy Contact - but they don't communicate with their users about it, they just expect their users to know about this from the media. 

I am deeply troubled to read in "California introduces ‘opt-in’ digital assets bill" that Assemblyman Ian C. Calderon hopes that: “California will take the reins and be the champion for the tech industry”. I hope this bill shall not pass, and that other states will not try and copy it. Why? because there isn't enough awareness yet for people to specifically say "yes, I do wish to grant access to my heirs or kin to my digital legacy", and, without such clear and written consent, grieving family members will be locked out of the accounts of their loved ones, with enormous amounts of content of sentimental and/or financial value lost for good, or, to be more precise, for bad. 

I look forward to reading what Jim Lamm will have to say about this in Digital Passing, and here is what ​Evan Carroll (The Digital Beyondalready had to say about this. In our correspondence he too referred to PEAC as "Written by and for​​ the technology companies and privacy lobbies". September 27th update: Evan wrote a post about this in "The Digital Beyond": Final Revised UFADA Now Available.

October 5th update: An interesting post titled State Lawmakers Have Options to Protect Your Digital Legacy by Alethea Lange at the Center for Democracy & Technology (CDT) is well worth reading. 


If you'd rather go through pics than through links: 


Comparison between acts and versions, page 1 

Comparison between acts and versions, page 2

Comparison between acts and versions, page 3 

Comparison between acts and versions, page 4 

Comparison between acts and versions, page 5 

 The objection to UFADAA, page 1 
  The objection to UFADAA, page 2 
  The objection to UFADAA, page 3
 The objection to to UFADAA, page 4 

 ULC's reply to objection, page 1 
  ULC's reply to objection, page 2 
 ULC's reply to objection, page 3 


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