The Law of Digital Remains

The Law of Digital Remains

Reconciling the dignity and interests of the deceased with those of the living
Damien McCallig, School of Law, National University of Ireland Galway.

Introduction
Dealing with the aftermath of someone’s death is always a difficult and sensitive issue.  In recognition of this, society has developed various rites, rituals and norms to aid the family and loved ones to deal with the physical remains and redistribute the possessions of the deceased.  This involves balancing an innate desire to respect the dignity of the deceased with the needs and interests of the surviving family and wider community.

In the pre-digital age laws adequately reflected these rites and norms.  For example, personal mementos, photographs, letters, scrapbooks and meaningful tokens that hold sentimental value pass by default along with the physical property they are bound up in.  Succession law reflects these norms, with personal property passing by will or the rules of intestacy.  The unauthorised interference by unconnected third parties with a deceased’s personal items was generally precluded as they were bound up in property that would remain within the home or in the possession of friends or family.  The digital universe has changed this.

Digital Remains are Different

Digital technology is detaching personal possessions from the physical plane, where property law of all sorts had found definition.  Letters now take the form of e-mails and, instead of scrapbooks with pictures or news clippings of old friends and memories, social network connections detail daily interactions and events.  There is no longer a physical artifact to possess or in which to claim ownership.  One’s digital remains are locked behind passwords; therefore, without access, these remains and their economic or sentimental value are lost to the loved ones of the deceased.

This phenomenon of the digital age has led to novel problems for online service providers.  Social network services are gradually being turned into digital memorial sites.  Heirs and family members of the deceased increasingly seek access to or control over Internet-based accounts.  Some service providers deny access, citing concerns for the privacy of the deceased; others hand over the digital remains upon request.

A person’s digital remains are also an information trail that is left behind.  Interactions with the State are a good example: registering births, deaths, marriages; acquiring passports; identifying oneself to the Department of Social Protection, the Revenue Commissioners or the Health Service Executive.  Many of these interactions are mediated and recorded digitally.

Research Questions

This research project poses five central questions regarding the legal and regulatory position of the digital remains of the dead.  As this is the first extensive examination of this nascent area, the clear starting point is to conceptualise what a decedent leaves behind in digital media.  Is it a form of property, personal information or some element of personality or a combination of these?  What are the principal philosophical and theoretical underpinnings to support various definitions, frameworks and taxonomies of digital remains?  Are property or personhood theories applicable?

The definitional and theoretical evaluation also requires an assessment of why digital remains are important.  What is their value to the deceased, heirs, the surviving family, next-of-kin and society?  What are the legal, personal, social, economic and cultural rationales for respecting the memory of the deceased and the rites and rituals that surround death?  Whose interests are served by these practices?  Do they protect the interests of both the living and the deceased?

It is of central concern to the research, therefore, whether personal rights and interests survive death.  Does the death of a human subject create duties and obligations in the general public, the surviving family or the next-of-kin in favour of the deceased?  Are there relevant principles established in current laws (e.g. copyright, privacy, confidentiality, freedom of information, data protection or defamation) for dealing with posthumous rights and interests?

The nature of technology and the business models that support it in everyday life also require examination.  The bulk of digital remains are in the possession of third party service providers.  What issues does the mediated aspect of people’s digital lives pose?  What impact do the ‘Terms of Service’ and ‘End User Licence Agreements’ have on claims to digital remains?  Who should own these remains after one’s death?

The final question posed by this research is whether there is a role for regulation in this area.  Should the law intervene, and if so how?  Can the interests of all stakeholders be reconciled?  Take the example of digital public records and their treatment; should beneficial secondary uses override privacy concerns of individuals or the families of the deceased?  Should our digital remains be donated to research and science?  What aspects of digital remains require regulation: ownership, access, control or moral aspects such as paternity and integrity?

Contribution of this Project

As the once static and property-based memories of the deceased are replaced by virtual and, through digital technology, possibly dynamic remains, new and exciting legal and ethical puzzles are posed for society.  This research will provide clear policy foundations for Internet-based service providers to define their obligations regarding the accounts of the deceased.  As the first extensive examination of the rationales underpinning the regulation and control of the digital/virtual-self following death, this research will also prove invaluable for policy makers, legislators and regulators generally.

(Image used with the permission of Ryan Robinson www.ImageThink.net)