Field RemarksInformation & LawLab NotesLiving between the linesNotesObservations

Digital identities and assets in case of death or incapacity – A first summary

The text that follows both summarizes (but discussion is only just beginning) and complete previously published notes on the subject beginning with this one. This text is derived from my notes in preparation for the interview I gave to the La Sphère on the Première Chaine of Radio-Canada, February 4, 2012.

The personal story

As I became a grandfather in May, I thought it was a good time to review my will and mandate in case of incapacity. Except that I discovered that I had to ask my representatives or executors to handle lots of online accounts and digital documents. The large majority of my documents are to be found in digital forms: letters, records, invoices, contracts, tax documents, bank and accounting books, photos. These files are embedded in computers, hard drives, servers, USB keys, DVDs, data cards, media player protected by user names, passwords, and encryption keys.

Pierrot Péladeau en entrevue - in interview

As many of you, several dimensions of my life are carried on:

  • social media (Twitter, Google +);
  • sites of broadcasting (Photobucket, YouTube, Vimeo);
  • blogs and websites, personal and professional;
  • intranets of organizations with whom I work;
  • discussion forums;
  • personal accounts on banking, shops, pollster, libraries sites, etc.

And the number of accounts I open is constantly increasing. Three new in January alone: the last one, to get to my tax slips from an employer.

As for notaries

Last June, I asked my notary how to write in a will or a mandate in case of incapacity clear instructions in regard to these accounts. She did not know. She consulted her colleagues. And re-consulted others. After six months: she still did not know and she resigned from my case.

I called the legal information service of the Chambre des notaires du Québec (CNQ: notaries’ professional corporation). It acknowledged that this was an important issue, but we did not have any advice or training on the subject.

At the Chambre des notaires itself, the Director of Communications, Antonin Fortin, wrote to me at first:

We are talking about a complex, relatively new and evolving phenomenon. In addition, the CNQ cannot substitute itself to the legislator and “create” law in this matter. To our knowledge, there is no guide to meet your expectations.

(My translation)

Disbelieving, I contacted again the Chambre de notaires that finally declared it would ask notaries to study the problem in order to design solutions. This is good news. But with two caveats.

  1. All four notaries I contacted, told me it was a question to be treated by specialists, not by your neighborhood notary. Wait a minute! This is already an issue for a majority of adults in the population. So are all notaries who are concerned.
  2. While waiting for the solutions proposed by the profession, we must find some by ourselves.

My search for solution

So I performed my own research. I did find some interesting resources: notably, the Death and Legacy blog’s of Adele McAlear as well as The Digital Beyond site that maintains a list of services available.

My provisional conclusion: no turnkey solution exists at the moment for the disposal of all digital identities and assets in case of incapacity or death. While many start-ups offer some online services (records of our online presence, sending emails after death, memorial sites), we note that these are solutions that:

  • most often deal with certain types of assets or digital identities only;
  • offer no guarantee that they will be in business in 20, 30 or 40 years from now;
  • are often foreign companies, therefore subjected to the laws of other countries; and especially
  • are unknown entities raising the question of how to establish some relationship of trust.

In short, the solution seems to be: self-management of one’s own digital business.

A self-managed solution proposal

Basically, it’s not a legal problem, but rather one of effective communication of instructions through time toward a future no one can predict.

The self-managed solution I developed in more detail in another text come as three stories or as nested Russian dolls.

The upper level is found in the will, the mandate in case of incapacity or a business succession plan. These are general instructions of your wishes about how you want your digital assets and identities be managed, by whom and for what purposes. If you do not write an official document, at least tell your friends and colleagues about what you want them to do with your accounts.

The lower floor is a working document kept by you: an inventory of locations of your documents and digital account with instructions for each. You keep this inventory in a secure (passwords, encryption keys, secret location) which you can be easily access for update. A grid for this inventory can be found here.

If you do not believe having the discipline to hold such an inventory, there is an easier minimal solution. Most opening procedures for new accounts require some email exchange. Always turn the emails into a single folder or inbox (possibly protected by a password or encryption). And create email for accounts opened otherwise. At least, your executors will have minimal basic information to begin their task.

The middle tier is a “sealed” document which specifies where the inventory is, how to access it and may specify who is responsible for carrying out some types of instructions. This document is maintained by a trusted third party (parent, notary, safety deposit box) who will permit access to it at the agreed time.

Outlook

Just as we learned to manage our financial assets, movable and immovable properties and our documents in macroscopic formats (files, correspondence, scrapbooks and private documents), we must now learn to manage our assets and identities in digital formats. Although there is a demand for specialized services, I doubt that the solutions should involve the current start-ups based on the other end of the world.

So we need to develop new practices:

  • individuals must learn to take inventory of their digital assets and identities and to indicate their wishes to close ones and colleagues;
  • providers of online services should have policies on accounts and content management by users, their agents and their estate;
  • funeral companies, notaries and others must provide referral service to trusted specialists able to help executors (e.g. with knowledge of WordPress, of social media configurations).

We need to educate:

  • notaries and lawyers, accountants and financial advisors need to train and equip themselves to in turn educate, equip and support the citizens of our digital world;
  • banks, insurance companies, online service providers, employers must also remind us of the necessity to manage digital accounts and content.

Need to clarify the legal dimensions:

  • organizations such as the consumer protection offices, personal data protection commissions and professional bodies must publish analyses and practical advices to clarify the application of already existing rules and laws. That, as much in respect of the rights of living than those incapacitated or deceased;
  • eventually, legislators must reform some elements of current law. An example is the proposed reform of EU directives on the protection of personal information in order to affirm the ability of citizens to remove or destroy themselves unnecessary information from their profiles on various sites.

Meanwhile, my personal research continues (by the way, I’m still looking for a notary). I will keep you informed here.



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