Death in the information age

Death in the information age

Introduction

In the late 90s, a person who worked in the same office as me died in fairly horrific circumstances. At the time at work, I was out as a gay man, and he was profoundly closeted. As far as I’m aware, at the time at least only one other person in the office knew he was gay.

He came from a deeply religious, judgemental family, and feared at every level how he might be ostracised, either at work or in his family, should anyone gain knowledge of his homosexuality. This, I knew, because we frequently had long conversations over IRC1 in the year or so before his death. (I was out, and immediately identifiable on IRC by my username, and he began talking to me; shortly thereafter I pieced together who he was and this led to broad conversations.)

When news broke of his death, I felt shock, and sadness like anyone else who would lose a colleague they respected. But this was tinged with something else – the knowledge that his bereaved family were likely to get a significant awakening when they started going through his house, including the room he’d told me he used as storage for things he didn’t want his family to see when they visited. This was a room whose contents he had emphatically maintained while alive  his family should never see.

In March 2017, news broke of a family trying to get access to the locked iPad of their 18 year old son, Liam, who had died in December 2016. Cult of Mac summarised it thusly2:

Liam Wright from the U.K. died of bone cancer in December. He reportedly recorded his last wishes on his iPad because he found it too difficult to have the conversation with his family.

However, when he passed away, his family were unable to gain access to his iPad, and therefore had to have the funeral service without knowing that [sic] he had wanted.

According to Liam’s sister Kerry Lamb, they tried to gain access to the locked iPad, but “hit a brick wall” with Apple, who she says is being “ridiculous” by not helping them access the tablet. When pressed, Apple said it wouldn’t unlock the iPad unless it had a death certificate and solicitor’s letter. When these were sent, the company then claimed the family had not sent the correct information, and now wants a court order.

In addition to notes about his wishes after death, Liam Wright reportedly had numerous videos and photos stored on his Apple device, which the family would like to access.

In April 2013, a Brazilian judge ordered Facebook to delete the profile of a 24 year-old journalist who had died the previous year3:

The mother of Juliana Ribeiro Campos filed a case arguing that messages, songs and photos posted by friends and family caused her extreme distress.

Ms Campos worked as a press officer in Campo Grande, central Brazil, and died from complications following surgery.

Her mother, sociology professor Dolores Pereira Coutinho, 50, campaigned for months before taking legal action.

In December 2015, a husband and wife couple went on a shooting rampage in San Bernardino, in the United States, resulting in the death of 14 people, with almost two dozen more injured. A few hours after the primary incident, the shooters were killed in a gunfight with police. An iPhone 5C belonging or used by one of the shooters was shortly thereafter discovered, and the FBI began court proceedings very shortly thereafter to try to have Apple compelled to write effectively a hacked version of the operating system to be delivered to the phone in question to allow it to be unlocked. Apple fought back on the grounds of the broader privacy implications beyond the individual case, stating in an open letter to its customers4:

The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge

What happens, then, when we die? In this, we are not asking the question-eternal, whether there’s a spirit, etc., but what happens digitally to us, and even those around us, when we die?

We live in a highly connected world, and for many of us this means we extend who we are, and even how we think into that world. Thanks to the Internet, our social networks have become potentially orders of magnitude more complex and geographically disperse than they were fifty years ago. With just a few clicks, a person might talk for free to a friend or a colleague on the other side of the planet, with seemingly no more effort than they might lean across their front yard fence and say hello to an acquaintance walking past. Thus, while in the past the majority of a person’s regularly-interacting friends and acquaintances were likely to be in reasonably close proximity to one another, this is no longer necessarily the case. Co-workers might live in another country, or on another continent, even. Friends and relatives on the other side of the globe may be in daily or at least regular contact.

We often think of the positive benefits of this change to our social and work networks, but there are challenges to be had as well, and arguably one of the most challenging topics to deal with in an online world is that of death.

Hourglass almost empty

The information age is changing the complexity of death. While for earlier generations, a death might be announced in the newspaper, or for those close to the person who had passed away, a phone call or visit by a close family member or friend, now there is potentially a much broader spectrum of people who may be affected. Following the passing of a friend earlier in the year for instance, many (including myself) found out by seeing the following post onto his Facebook wall:

Dear friends of our brother ____

It is with great sadness that we write this post to let all who loved him know that today we learned ____ passed away at his home last week. He died peacefully but of his own choosing. When found in his bed he had his earphones in and we like to think that he passed with the sweetest music playing that may have offered some relief from the pain he felt.

When a person with a digital presence or digital personality dies, there are multiple factors that should be considered, including, but not limited to:

  1. Who owns the grief?
  2. Who can gain access to the digital presence?
  3. Digital deletion.

Who owns grief?

It might sound nonsensical to suggest that someone owns the grief, but in this we need to consider and balance the rights of the bereaved and how they are able to mourn. In the previously cited 2013 case where Dolores Coutinho successfully argued that her deceased daughter’s Facebook page should be deleted, the primacy of the closest living relative’s right to avoid emotional trauma was effectively a deciding factor5:

This ‘wailing wall’ just makes me suffer too much,” she told the BBC.

“On Christmas Eve many of her 200 friends posted pictures they had taken with her and recalled their memories. She was very charismatic, very popular. I cried for days,” she said.

Yet mourning is not an activity exclusive to parents, close relatives, spouses or others – any person may partake in it. The “wailing wall” incident described by Dolores Coutinho of her daughter’s Facebook page is not uncommon; friends and those connected to the deceased may spend weeks or months posting onto a deceased person’s wall with memories or feelings, and significant events – major holidays, birthdays, personal anniversaries, or even Facebook’s “Your memories” system can trigger new rounds of commemorative or reminiscent posts. This public (or public within a social grouping) process of initial and sometimes ongoing mourning is not a new challenge to be dealt with. Consider the lyrics to “Oh What a Circus”, from the musical, Evita6:

Oh what a circus, oh what a show
Argentina has gone to town
Over the death of an actress called Eva Peron
We’ve all gone crazy
Mourning all day and mourning all night
Falling over ourselves to get all of the misery right

Such mourning was likewise repeated with the death of Princess Diana, in August 1997, we have seen questions raised as to whether mass and/or prolonged grief is real, or healthy. This has led to the coining of the term recreational grief7:

Ostentatious displays of public mourning such as the outpouring of grief in Britain after the 1997 death of Princess Diana have become a “cheap emotional fix” replacing real emotion, according to a new report.

Furthermore, psychological research has prompted the proposal of a new classification of psychological disorder, referred to as adjustment disorder related to bereavement. From Science Direct8:

Adjustment disorder related to bereavement (ADRB) is a condition that may develop after a loss, does not resolve over time, and requires clinician intervention.

Such definitions are not unique; the World Health Organisation also defines a similar condition, prolonged grief disorder9.

This is not to say anniversary/special-event collective postings onto a deceased person’s Facebook wall is a sign of recreational grieving, nor does it suggest anyone who makes reminiscent posts on a deceased person’s Facebook wall is suffering from a grief disorder, either. However, the collectivecumulative impact of a large number of postings in a relatively short period of time can very well, based on Facebook algorithms, force activity into prominence for those who have a deeper and more profound grief. Additionally, advertising activity or tweaking of display algorithms may re-introduce activity from a now-deceased person back into timeline feeds as if it were ‘new’. From a Facebook post and comment stream:

A good friend of mine who passed away some years ago liked some random artist/song writer yesterday. It’s a bit upsetting to say the least.

…Clicking on it [the profile] showed it was still a memorial page.

…My guess is Facebook advertising and they forgot to exclude dead people.

While the exact circumstances of the above example are not known, the situation points to the broader issue of potential emotional risks introduced when a software platform used by more than a billion people is constantly being tweaked and adjusted.

Collectively, all of these belong to the realm of what must be considered when we evaluate the impact of mourning on others.

Who can gain access to a digital presence?

When a person dies, their physical belongings – be they kitchen appliances, houses, photos, saved letters or anything else – can typically be accessed and divvied up by those closest to the person, often in accordance to their will. Wills exist as a means of ensuring the wishes of the deceased are honoured, although the inviolable nature of wills is more a fictional trope than a true reality. In April 2012, Richard Ackland wrote10:

…what may surprise a lot of people is the wide discretion judges have to rewrite people’s wills and overturn their express wishes.

The notion that loosely exists that a will is an impermeable document is quickly shaken when, in appropriate cases, frozen-out relatives manage to get their hand in the till.

There are at least eight instances from last year in the NSW Supreme Court where judges rewrote wills and, in some of them, made provision for people who had been specifically excluded by the deceased.

The State Library of New South Wales ‘Legal Answers’ guide provides details of who can apply to contest a will, and the list is broad11:

  • the wife or husband of the deceased person at time of death
  • a person with whom the deceased person was living in a de facto relationship at the time of their death (including same sex partners)
  • a child of the deceased person
  • a former wife or husband of the deceased person
  • a person who was, at any particular time, wholly or partly dependent on the deceased person, and at any time a member of the same household as the deceased person
  • a grandchild who was at any particular time wholly or partly dependent on the deceased person
  • a person with whom the deceased person was living in a close personal relationship at the deceased person’s death

While different countries and different legal spheres of influence within those countries will have their own laws relating to wills and more broadly the last wishes of the deceased, the general presence of such laws suggest to us that it is (broadly) accepted for many that the last wishes of the deceased are not actually inviolable. (For instance, the United States allows for ‘interested persons’ to contest a will12. Likewise, the United Kingdom’s Inheritance Act allows a variety of claimants to contest wills13.) This would imply a similar consideration (both in general, for honouring, and allowing provisions to waive) for understanding the wishes of a deceased person’s “digital estate”.

There are a variety of mechanisms both formal and informal that might be used to provide people access to a deceased person’s electronic accounts. The deceased may make adhoc provision by arranging access in advance, or as a precaution, to a trusted relative or friend, either through direct provision of passwords, or access via some form of escrow. For instance, the website ifidie.org provides a broader, ‘letter’ themed escrow service, viz.14:

The basic idea is simple. if i die.org gives you a way to say some last words to someone when those words can’t be said in person.

(While the service advertises itself as a ‘letter’ delivery mechanism, such letters might equally be used to provide access credentials and passwords.)

As social media has evolved, so too has the handling of a user’s death. Facebook for instance introduced the notion of converting a user’s account from active to memorial, or allowing the account to be deleted, and provides a variety of details about how memorialized accounts work, etc. (See Memorialized Accounts.) This includes information such as assigning a legacy contact, who can make some updates to a deceased person’s profile, etc.

Beyond social media, as we observed in the introduction, death poses a challenge for companies providing not only consumer devices but consumer Cloud based services. At the heart of the matter is that access to a deceased person’s device or accounts, if provided without sufficient checking and proof, could easily be used as a hacking mechanism, breaching user security or privacy. Thus, companies such as Apple and Google are effectively obliged to consider a deceased person to be alive until proven otherwise. Even then, once a user is proven dead, it would be risky to assume this is sufficient cause for such companies to automatically hand over access to either a first requestor, or a requestor who might appear to have a high level of personal interest, such as a parent, close relative or spouse. For instance, there is contention in multiple countries as to whether spouses have a right to privacy from one another – and more often than not this will be something that has both legal and personal obligations15. Likewise, while a parent can have no greater claim to invade the privacy of their adult child than any other normal citizen might, a child’s privacy in relation to his or her parents is poorly understood or agreed to ethically and legally. For instance, most documented scenarios around dependant child privacy relate more to parents having the final say on sharing/disclosure of information, under standard grounds of the child being legally unable to make such decisions as a minor. Such considerations however do not particularly delve into the child’s right to have privacy from the parent, something that will have increasing complexity as the child approaches adulthood.

Effectively in such situations, we still need to consider whether death in itself is a sufficient cause to void the in-life privacy considerations for an individual. This is a topic which continues to be debated – for instance, the Australian Law Reform Commission noted that currently, ‘in law, deceased persons have no privacy interests’, but argued that16:

8.3 In the ALRC’s view, the protection provided by the Privacy Act is analogous to the protection provided by legal duties of confidentiality that, unlike a right to sue for defamation, do survive the death of the individual. The provisions recommended in this chapter are intended to ensure that living individuals are confident to provide personal information, including sensitive information, in the knowledge that the information will not be disclosed in inappropriate circumstances after they die. The provisions are also intended to protect living relatives and others from distress caused by the inappropriate handling of a deceased individual’s personal information and to provide a right of access to that information for family members and others where such access is reasonable.

Should legal considerations of privacy evolve to include ongoing right to privacy, this will no doubt muddy the waters further in regards to accessing a deceased person’s digital accounts and devices. While it may be personally distressing for individuals involved, it is perhaps arguably understandable that companies involved in such situations choose to step back and err on the side of caution.

Digital deletion

While we have partly covered this topic in both Who owns grief and Who can gain access to a digital presence, the topic of digital deletion extends further.

Authors such as Frank Herbert17 and J.R.R. Tolkien18 left behind copious volumes of notes when they passed away. Such notes were used by descendants to complete or even create new works of fiction in the realms they had conceived. Had these notes been stored in electronic format on a paid subscription service, they might have been deleted automatically when the subscription could not be renewed.

While we often consider the luxury and practicality of ‘unlimited storage’ or ‘storage accessible anywhere’ for online services, such services do not necessarily automatically continue to operate for a person after their death. Services which require ongoing payment (e.g., hosted websites, such as this one) will continue to be provided only for that specified payment period, without intervention (e.g., service renewal). It may very well be argued that the onus of determining the appropriate level of digital preservation is on the individual creating the content. This may include making provision in a will for ongoing service payments, or again, to allow a nominated contact or loved one to retrieve and archive previously written content. Over time, this may even necessitate changes in how bequests are handled. A person may, upon death, will their archives or their library to a trust, a business, an individual or the public, but what if they want to bequeath their blog?

Equally, a person may wish their digital data to be deleted or destroyed after their death. Most recently for instance, according to The Guardian19:

The unfinished books of Sir Terry Pratchett have been destroyed by a steamroller, following the late fantasy novelist’s wishes.

Such requests of course are still likely to be subject to normal processes around contesting of wills. (For instance, while there is no indication this happened in Terry Pratchett’s case, a spouse might justifiably contest a will in such situations on the grounds that they might be left worse off if notes are not provided to a ghost writer to complete books to publication.)

Conclusion

Death is a sensitive topic to many, either in the personal sense or the broader subject. It can trigger significant emotional harm or bereavement, and the death of a single individual may affect a large number of people to varying degrees. Humanity has spent countless years honing and evolving how we deal with death, both personally and culturally, and while many of these techniques are equally applicable in a digital age, there are potentially significant gaps created legally and ethically due to the rapidly changing digital realm. This is perhaps a reflection of the broader concerns regarding the potential for information to be lost in this new era. Per The Guardian20:

Humanity’s first steps into the digital world could be lost to future historians, Vint Cerf told the American Association for the Advancement of Science’s annual meeting in San Jose, California, warning that we faced a “forgotten generation, or even a forgotten century” through what he called “bit rot”, where old computer files become useless junk.

This post has not attempted of course to suggest a ‘best approach’. The central issue is not emphatically stating what ought to be done, but to promote awareness that such discussions are needed. Social media, consumer electronics and various other service corporations may store significant amounts of data on or for us, and it will become increasingly important that we develop ethical, cultural, legal and technical frameworks around the handling of this information once we die.

Footnotes

  1. Internet Relay Chat
  2. Family upset that Apple won’t unlock dead son’s iPad, Luke Dormehl, March 27 2017, Cult Of Mac
  3. Brazil judge orders Facebook memorial page removed, Jefferson Puff, 24 April 2013, BBC Brasil
  4. A Message To Our Customers, Tim Cook, February 16 2016, Apple
  5. Brazil judge orders Facebook memorial page removed, Jefferson Puff, 24 April 2013, BBC Brasil
  6. Lyrics by Tim Rice, music composed by Andrew Lloyd Webber
  7. Report slams ‘recreational grieving’ trend, 24 February 2004, ABC News Australia
  8. Adjustment Disorder Related to Bereavement, Lydia M. Greis, 2012, Science Direct
  9. Improving mental health care in humanitarian emergencies, Peter Ventevogel, Mark van Ommermen, Marian Schilperoord and Shekhar Saxena, WHO Bulletin 2015
  10. Where there’s a will, there’s a chance for wasteful litigation, Richard Ackland, 13 April 2012, Sydney Morning Herald
  11. Chapter 2h: Contesting a will, State Library of NSW
  12. Who can challenge a will, Findlaw
  13. This is the way to challenge a will, 25 October 2007, The Telegraph (UK)
  14. How it works, ifidie.org
  15. That is, while the law in a particular jurisdiction may include provisions for complete privacy between spouses, spouses or couples may willingly share all information between one another as part of their relationship anyway.
  16. Privacy of Deceased Individuals, Australian Law Reform Commission
  17. Dune series
  18. Lord of the Rings, The Hobbit, etc.
  19. Terry Pratchett’s unfinished novels destroyed by steamroller, Stephanie Convery, 30 August 2017, The Guardian
  20. Google boss warns of ‘forgotten century’ with email and photos at risk, Ian Sample, 13 February 2015, The Guardian
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