Digital inheritance
Encyclopedia
Digital inheritance is the process of handing over (personal) digital assets
to (human) beneficiaries
.
introduced the concept of universal succession
, which means that e.g. in inheritance law the heirs enter into the legal position regarding property rights (includes duties and rights) of the testator by law.
Data sets that can be inherited can include password
s, instructive memo
s, digital contract
s, digital receipt
s, pictures, medical information (e.g. about inheritable diseases).
Today, more and more values are resting on media that are not owned by the data owner but by service provider (e.g. Google
, Apple, Microsoft
etc.).
Also in contrast to physical values, electronic values can be copied indefinitely, which could be problematic if the asset represents intellectual properties. On the other hand it poses a challenge for many data heirs to receive or to create copies for all interestees when they have limited IT
skills themselves.
A further challenge comes with the extreme proliferation of digital data. 5-10 Gigabyte
s new digital assets per year per family (if one takes digital pictures
into account), is rather common. Data heirs that are faced with an un-sorted data flood are often unable to separate the nice-to-have assets from crucial and core assets.
Yet another problem is posed by the fact that contracts with service providers most often are automatically terminated (by the terms of service) as soon as the customer ceases to exist. Meaning that there is no right for the heirs to access that data.
numbers. Handing over digital assets requires additional instructions that may be crucial for an heir to further treat the digital assets.
Other applications can be to simply document the digital essence of a person, meaning to fulfill one of the oldest and deepest human wishes, to leave traces and become remembered.
. As mentioned earlier, the concept of universal succession means, that heirs enter into the legal position regarding property rights of the testator by law. Such property rights as elements of the descendant’s estate are – under several national laws, e.g. in Switzerland
so called subjective rights (like outstanding debits, property, intellectual property rights and others) as well as possession-based rights of the testator.
Digital data can constitute subjective rights (e.g. copyright
regarding a manuscript
of the testator). However, the majority of digital data won't be a subjective property right (e.g. passwords, personal images or notes). In order that such data falls into the descendant’s estate, the testator must have possessed these data. Possession again is usually related to objects, which leads to the question, if digital data are objects in the legal sense. Today, it is commonly assumed that digital data does not comply with basic characteristics of objects such as physicalness.
As far as digital data is saved on a data medium of the testator, such digital data is adducted by the possession of the medium as an objective. Of course this is not the case if the testator has transferred his digital data to a service provider to archive it on the service's server
. In such a case, it is crucial, that the testator has had access to the digital data e.g. online with a password. In such a case the password – analog a key for the good old save box – is an aid for access, which creates possession in a legal sense. Then the access to the digital data (and aligned with this the notice of the data) falls into the decedent's estate. It is currently assumed that there is no reason why, e.g., photographs in a photo album should be treated differently than photos archivated as digital data. As a result it can be declared, that digital data, archivated on a medium of the service provider, falls into the decedent's estate, as far as the testator has had access and the digital data is not cleared with the testator's death.
If the testator doesn’t want the ordinary inheritance of his digital data to all of his heirs, but instead wants to pass it exclusively to one or more specific persons, they are required to make certain dispositions in their lifetime. Of course, if they are the only one who knows about the digital data, he can pass the access keys to his assignee and all the other heirs won't know about it. Different national law representatives do not agree whether the testator can by means of testamentary disposition assure, that only the assignee does notice of his digital data. The problem here is, that with the opening of the will at the latest, the other heirs should get knowledge of the existence of digital data and will be authorized (under many national laws, e.g. in Switzerland) to get to know the digital data based on their information right as heirs. Not even a declared will of confidentiality of the testator is preferential to the information right of the heirs. This is understandable in a way, as it protects the minimum legal portion of each heir if the digital data has monetary value. All the same the testator can partially assure that his will is going to be respected by downgrading those who do not respect his declared confidentiality will to the minimum legal portion.
of the most important assets and deposit it offsite (e.g. a bank vault) and consequently determine a single person (lawyer, partner, children) that will post-mortem distribute the data. This should also include a list of passwords to online (and local) accounts. Obvious challenges are here in the area of security, data readability (are there still readers for the media, are there still programs for the files) and manageability (uptodateness of the backup as well as assignments to heirs).
Digital media
Digital media is a form of electronic media where data is stored in digital form. It can refer to the technical aspect of storage and transmission Digital media is a form of electronic media where data is stored in digital (as opposed to analog) form. It can refer to the technical aspect of...
to (human) beneficiaries
Beneficiary
A beneficiary in the broadest sense is a natural person or other legal entity who receives money or other benefits from a benefactor. For example: The beneficiary of a life insurance policy, is the person who receives the payment of the amount of insurance after the death of the insured...
.
History
The Roman lawRoman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
introduced the concept of universal succession
Inheritance
Inheritance is the practice of passing on property, titles, debts, rights and obligations upon the death of an individual. It has long played an important role in human societies...
, which means that e.g. in inheritance law the heirs enter into the legal position regarding property rights (includes duties and rights) of the testator by law.
Unique Characteristics of Digital Assets
Digital assets are (in contrast to physical assets) more dynamic in appearance and fugacity.Data sets that can be inherited can include password
Password
A password is a secret word or string of characters that is used for authentication, to prove identity or gain access to a resource . The password should be kept secret from those not allowed access....
s, instructive memo
Memo
Memo may refer to:* Most commonly Memorandum.* Bench memorandum, law* Memorandum Recordings - record company* Mêmo* MEMO - specialization in electrical engineering that studies Microwaves, Electromagnetism and Optoelectronic...
s, digital contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
s, digital receipt
Receipt
A receipt is a written acknowledgment that a specified article or sum of money has been received as an exchange for goods or services. The receipt is evidence of purchase of the property or service obtained in the exchange.-Printed:...
s, pictures, medical information (e.g. about inheritable diseases).
Today, more and more values are resting on media that are not owned by the data owner but by service provider (e.g. Google
Google
Google Inc. is an American multinational public corporation invested in Internet search, cloud computing, and advertising technologies. Google hosts and develops a number of Internet-based services and products, and generates profit primarily from advertising through its AdWords program...
, Apple, Microsoft
Microsoft
Microsoft Corporation is an American public multinational corporation headquartered in Redmond, Washington, USA that develops, manufactures, licenses, and supports a wide range of products and services predominantly related to computing through its various product divisions...
etc.).
Also in contrast to physical values, electronic values can be copied indefinitely, which could be problematic if the asset represents intellectual properties. On the other hand it poses a challenge for many data heirs to receive or to create copies for all interestees when they have limited IT
Information technology
Information technology is the acquisition, processing, storage and dissemination of vocal, pictorial, textual and numerical information by a microelectronics-based combination of computing and telecommunications...
skills themselves.
A further challenge comes with the extreme proliferation of digital data. 5-10 Gigabyte
Gigabyte
The gigabyte is a multiple of the unit byte for digital information storage. The prefix giga means 109 in the International System of Units , therefore 1 gigabyte is...
s new digital assets per year per family (if one takes digital pictures
Digital photography
Digital photography is a form of photography that uses an array of light sensitive sensors to capture the image focused by the lens, as opposed to an exposure on light sensitive film...
into account), is rather common. Data heirs that are faced with an un-sorted data flood are often unable to separate the nice-to-have assets from crucial and core assets.
Yet another problem is posed by the fact that contracts with service providers most often are automatically terminated (by the terms of service) as soon as the customer ceases to exist. Meaning that there is no right for the heirs to access that data.
Handing over Digital Assets
In contrast to conventional inheritance of physical assets, digital inheritance also needs to cope with the fact that the digital heirs may only be known by their email addresses or mobileMobile phone
A mobile phone is a device which can make and receive telephone calls over a radio link whilst moving around a wide geographic area. It does so by connecting to a cellular network provided by a mobile network operator...
numbers. Handing over digital assets requires additional instructions that may be crucial for an heir to further treat the digital assets.
Application
Digital Inheritance should be set up wherever important data needs to be handed over in case of an event that renders the owner incapable of caring for those assets. The data owner hence has an interest to list (or centrally store) his or her assets and decide who will need which data. The data owner will also need to specify the circumstances under which the data shall be handed over to heirs (generally this is simply the death of the owner) but it can be difficult to prove the death in an international setup where heirs, data sources and last residence of the owner are internationally spread. The data owner will also need to have a way for secure and guaranteed notifications of data heirs even if they are only reachable via electronic channels.Other applications can be to simply document the digital essence of a person, meaning to fulfill one of the oldest and deepest human wishes, to leave traces and become remembered.
Legal perspective
From a legal point of view, digital inheritance requires that digital data takes part of the descendant's estateEstate (law)
An estate is the net worth of a person at any point in time. It is the sum of a person's assets - legal rights, interests and entitlements to property of any kind - less all liabilities at that time. The issue is of special legal significance on a question of bankruptcy and death of the person...
. As mentioned earlier, the concept of universal succession means, that heirs enter into the legal position regarding property rights of the testator by law. Such property rights as elements of the descendant’s estate are – under several national laws, e.g. in Switzerland
Switzerland
Switzerland name of one of the Swiss cantons. ; ; ; or ), in its full name the Swiss Confederation , is a federal republic consisting of 26 cantons, with Bern as the seat of the federal authorities. The country is situated in Western Europe,Or Central Europe depending on the definition....
so called subjective rights (like outstanding debits, property, intellectual property rights and others) as well as possession-based rights of the testator.
Digital data can constitute subjective rights (e.g. copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
regarding a manuscript
Manuscript
A manuscript or handwrite is written information that has been manually created by someone or some people, such as a hand-written letter, as opposed to being printed or reproduced some other way...
of the testator). However, the majority of digital data won't be a subjective property right (e.g. passwords, personal images or notes). In order that such data falls into the descendant’s estate, the testator must have possessed these data. Possession again is usually related to objects, which leads to the question, if digital data are objects in the legal sense. Today, it is commonly assumed that digital data does not comply with basic characteristics of objects such as physicalness.
As far as digital data is saved on a data medium of the testator, such digital data is adducted by the possession of the medium as an objective. Of course this is not the case if the testator has transferred his digital data to a service provider to archive it on the service's server
Server (computing)
In the context of client-server architecture, a server is a computer program running to serve the requests of other programs, the "clients". Thus, the "server" performs some computational task on behalf of "clients"...
. In such a case, it is crucial, that the testator has had access to the digital data e.g. online with a password. In such a case the password – analog a key for the good old save box – is an aid for access, which creates possession in a legal sense. Then the access to the digital data (and aligned with this the notice of the data) falls into the decedent's estate. It is currently assumed that there is no reason why, e.g., photographs in a photo album should be treated differently than photos archivated as digital data. As a result it can be declared, that digital data, archivated on a medium of the service provider, falls into the decedent's estate, as far as the testator has had access and the digital data is not cleared with the testator's death.
If the testator doesn’t want the ordinary inheritance of his digital data to all of his heirs, but instead wants to pass it exclusively to one or more specific persons, they are required to make certain dispositions in their lifetime. Of course, if they are the only one who knows about the digital data, he can pass the access keys to his assignee and all the other heirs won't know about it. Different national law representatives do not agree whether the testator can by means of testamentary disposition assure, that only the assignee does notice of his digital data. The problem here is, that with the opening of the will at the latest, the other heirs should get knowledge of the existence of digital data and will be authorized (under many national laws, e.g. in Switzerland) to get to know the digital data based on their information right as heirs. Not even a declared will of confidentiality of the testator is preferential to the information right of the heirs. This is understandable in a way, as it protects the minimum legal portion of each heir if the digital data has monetary value. All the same the testator can partially assure that his will is going to be respected by downgrading those who do not respect his declared confidentiality will to the minimum legal portion.
Limitations and alternatives
In absence of solutions that can provide the above application the probably simplest approach to digital inheritance is to create regularly a backupBackup
In information technology, a backup or the process of backing up is making copies of data which may be used to restore the original after a data loss event. The verb form is back up in two words, whereas the noun is backup....
of the most important assets and deposit it offsite (e.g. a bank vault) and consequently determine a single person (lawyer, partner, children) that will post-mortem distribute the data. This should also include a list of passwords to online (and local) accounts. Obvious challenges are here in the area of security, data readability (are there still readers for the media, are there still programs for the files) and manageability (uptodateness of the backup as well as assignments to heirs).
See also
- Digital estateDigital estateThe term digital estate refers to data that can be inherited. Digital assets are more dynamic in appearance and fugacity. Data sets that can be inherited can include passwords, instructive memos, digital contracts, digital receipts, pictures, medical information The term digital estate refers to...
- ExecutorExecutorAn executor, in the broadest sense, is one who carries something out .-Overview:...
- InheritanceInheritanceInheritance is the practice of passing on property, titles, debts, rights and obligations upon the death of an individual. It has long played an important role in human societies...
- TrusteeTrusteeTrustee is a legal term which, in its broadest sense, can refer to any person who holds property, authority, or a position of trust or responsibility for the benefit of another...
- Will (law)Will (law)A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
- Secret sharingSecret sharingSecret sharing refers to method for distributing a secret amongst a group of participants, each of whom is allocated a share of the secret. The secret can be reconstructed only when a sufficient number of shares are combined together; individual shares are of no use on their own.More formally, in a...
External links
- Digital Inheritance; Patent application by Philips
- Last will service; Patent application by NEC
- Digital Inheritance Raises Legal Questions; Article
- Italian article by Ugo Bechini, from CNN (Consiglio Nazionale del Notariato), national organization of Italian Civil Law Notaries
- IEEE Conference presentation by Hong, Li
- Unconference about digital death and digital estate planning
- The Digital Beyond is a blog about digital existence and what happens to it after death