Ghost in the Machine: Managing the Information Afterlife

By Ken Strutin, Published on August 24, 2011

The scope of digital estates is growing by leaps and bounds. Parents are registering domain names for their unborn children1 and social media sites are creating cyber cemeteries where friends and family can visit the last online impression of the dearly departed.2 The majority of transactions in modern society are created and deposited in digital environments operated by third parties on remote sites.3 Yet, the rights of users and their inheritors to that content are not clearly spelled out in statutes or court decisions.

Virtual property represents a tripartite relationship among: (1) the user or creator; (2) the third party service that provides the environment for creating and communicating; and (3) the people with an interest in the decedent's estate or the affairs of the incapacitated. The valuation of this type of property is at the heart of many facets of law, such as intellectual property, trust and estates, criminal law (e.g., virtual homicide and theft),4 torts, and taxation (e.g., income valuation of digital assets or virtual wealth). The bottom line is who owns user content? And who will have posthumous rights of access and use?5

One scholar has characterized digital ownership rights as divided between creations made within the environment of a third party site that belong to the host and the value of those creations that are vested in the user.6 The central tension seems to be between contract law, founded on Terms of Service agreements, and property law, which represent the materialization of virtual assets. Other areas of law might also come into play, but everything hinges on the extent that real world jurisprudence can be applied to online environments in the administration of digital assets.

This article gathers current research about digital content ownership and disposition rights at the points where the life cycle has been interrupted or concluded.


Journals and Books

Current Awareness

1 See Would You Want a Digital Footprint From Birth?, AVG Official Blog, Oct. 6, 2010 ("[W]e [AVG] polled mothers with Internet access who have children under two in the five major EU States (UK, France, Germany, Italy, Spain), the USA, Canada, Australia, New Zealand and Japan. We asked them when they uploaded pictures of their children and what motivated them to do so."); Digital Births Global Survey (AVG 2010) ("Uploading ante-natal scans, giving children an online album from birth, and in some cases even creating email addresses for babies - today's parents are increasingly building a digital footprint for their children from the moment they are born.")

2 See Laura M. Holson, For Funerals Too Far, Mourners Gather on the Web, N.Y. Times, Jan. 24, 2011 ("Several software companies have created easy-to-use programs to help funeral homes cater to bereaved families. FuneralOne a one-stop shop for online memorials that is based in St. Clair, Mich., has seen the number of funeral homes offering Webcasts increase to 1,053 in 2010, from 126 in 2008 (it also sells digital tribute DVDs)."); Jesse North, Parents of Dead Students Use Facebook to Reconnect, N.Y. Times, Nov. 27, 2007.

3 See generally Kathryn Zickuhr, Generations and Their Gadgets, Pew Internet, Feb. 3, 2011 ("Many devices have become popular across generations, with a majority now owning cell phones, laptops and desktop computers. Younger adults are leading the way in increased mobility, preferring laptops to desktops and using their cell phones for a variety of functions, including internet, email, music, games, and video.").

4 The advent of personal life logging through implanted medical devices or data chips might open the door to new dying declarations and other kinds of testimony harvested from subcutaneous black boxes at the time of a person's death or incapacity. See generally Microchip Implant to Link Your Health Records, Credit History, Social Security, BNet, Oct. 5, 2009.

5 Cf. Ray D. Madoff, The New Grave Robbers, N.Y. Times, Mar. 27, 2011 ("For most of this country's history, a person's identity was not something that could be owned. While the unauthorized use of someone's name or image was sometimes barred as an invasion of privacy, the right belonged to that person alone and could not be assigned to others. It was not until 1953, in a case involving baseball players licensing their images for use on baseball cards, that American law first constructed identity as a property interest that could be sold or licensed. This interest became known as the right of publicity. Today the right of publicity clearly allows people to control the commercial use of their names and images during their lives. What happens after death is much murkier.").

6 See Olivia Y. Truong, Virtual Inheritance: Assigning More Virtual Property Rights, 2009 Syracuse Sci. & Tech. L. Rep. 57, 78 (2009)(The author went on to review the efficacy of a lease/license model for virtual content, especially as it might be transferred post-mortem; and other scenarios, such as the right to ownership and access to email but not the transference of accounts. The key point is that in cyberspace "the ownership of e-information is linked with the ownership of the medium, a server in which the data is stored." Id. at 84.).