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Death and the Internet 1 IGF Proposal – Death and the Internet 1. Basic Information Session Title: Death and the Internet Identify relevant IGF subtheme: Emerging Issues. To a lesser extent the following themes also apply: Cybersecurity and Trust; Enhancing Multistakeholder Cooperation List up to 5 tags: #digitallegacies, #privacy, #internet #legacy, #estateplanning 2. Summary or Abstract a. A statement of purpose (e.g. Why should this Internet Governance issue be considered at this time?) b. Description of the relevance to Internet Governance, and to the themes/sub-themes of the IGF meeting. c. Description of the expected results of the discussion In the past, for many of us our legacy was very simple. With most of our belongings in the family home, the only complexity arose in allocating very tangible assets fairly amongst our heirs. Now, thanks to an increasingly digital life, the question is changing from who gets what, to where is what, as our heirs take on the complex task of unravelling the mysteries of our vast digital footprint. There are many fascinating and complex issues in planning our digital legacy, and there is a distinct lack of guidance available for making things simpler for our loved ones when the inevitable happens. In Australia, each state has different arrangements and rules with respect to death, and very little clarity when it comes to dealing with international organisations and the validity of contracts, terms and conditions. Questions of privacy, access and inheritance are at present unresolved and societal attitudes are also unclear. The secrets that were once undiscovered until after finding Grandma’s stash of letters can now wind up spread across social media or exposed in a now public database. Thus, the issues that the bereaved need to assess and manage are becoming ever more complex and more urgent. They need to locate digital assets and records and navigate through what can be complex contractual and technology challenges to resolve ownership issues and to produce, and retain, meaningful and dignified records. These issues cross regional and national borders, and the applicable legislation varies considerably. To resolve the issues, at least one state of the USA has now enacted legislation and it is likely that more governments around the world will in the future. This workshop will expose and canvas the many legal and social questions around access to a person’s digital life after death: what rights should heirs have and what rights do they have? This forum will Australian Communications Consumer Action Network (ACCAN) Australia’s peak telecommunications consumer advocacy organisation Suite 4.02, 55 Mountain St, Ultimo NSW 2007 Tel: (02) 9288 4000 | TTY: (02) 9281 5322 | Fax: (02) 9288 4019 www.accan.org.au | [email protected] | twitter: @ACCAN_AU attempt to highlight the issues for legislators and consumers alike, and explore ways of assisting people in planning their digital legacy into the future. 3. Body of Paper – Death and the Internet, Issues in Digital Legacies In previous times a bereaved family looked to the household, the place of business and the banks to locate and manage a person’s assets after death, and erected a physical monument to remember their loved one. Nowadays people have increasingly conducted their lives online: using the internet to upload and download files, communicate with family, friends and business associates, trade and do business, store and share documents, listen to music, read books, watch videos and so forth. Those surviving also want to express their grief and remember their loved one online. The expectations of consumers in being able to access and control their loved ones’ legacy is out of step with the contractual law in place in many internet based systems and services. For example, some major email providers see the contents of a person’s email to be private even after death and may not reveal the contents even with a court order, yet in the past executors would read and handle written letters easily. The law applying to death and legacy varies from place to place and can vary significantly even within countries, and most definitely across national borders. The majority of internet services in common use are transnational in nature, and each service provider will have its own terms and conditions, policies and procedures in dealing with the deceased users. ACCAN has been working to clarify the issues associated with digital legacies and make lives easier for consumers. In 2013 a report was published after an investigation of this area: Bellamy, C., Arnold, M., Gibbs, M., Nansen, B. and Kohn, T. 2013, Death and the Internet: Consumer issues for planning and managing digital legacies. Australian Communications Consumer Action Network, Sydney. Available for download: http://accan.org.au/files/death_and_the_internet.pdf A successful workshop was held at the Australian Internet Governance forum along similar lines, and it is hoped that the same format can be used here. Whilst similar to a panel session, it is far more interactive and can often have unexpected outcomes. Some of our digital files and assets may have monetary value, such as online auction, gambling and financial accounts, and some are of personal value, such as videos, documents and photos. Digital technologies are increasingly utilised in daily life and are important records of a life, especially to friends and family who wish to remember the person who has passed away. Without considering the management of these digital assets, they may be lost, inaccessible and/or destroyed when a person dies, or becomes incapacitated. Conversely, the files may persist in inappropriate locations or be accessible in ways that may cause distress to the bereaved family, such as becoming the target of inappropriate comments or online graffiti. In the same manner that estate planning is needed for the distribution of material and financial assets, it is becoming increasingly important to plan for the distribution of a person’s digital material. It is important that individuals consider who will have access to these digital files and assets and how they will be managed, passed-on and/or deleted. A good way to make these preparations is through the creation of a digital register. A ‘digital register’ is a private record of the account details, user names and passwords needed to access a person’s digital assets and files, along with instructions on what to do with those digital materials, once the person has passed away. Usually, the digital register will be created and maintained by the person himself or herself. It should be stored safely (such in a solicitor’s safe custody, safety deposit box at the bank or secure cabinet in the home), often together with the person’s will, to maintain the security and privacy of the person’s digital files and assets. Digital registers, although an effective and practical solution, have little legal status around the world. List of questions to be discussed and/or to be asked to key players This session will use the popular 'Hypothetical' style format where each of the members of the panel will take on a character (informed by their own expertise) and a scenario will be played out. Without giving away too much of the story, the characters will be: A consumer, an internet service provider, an estate planning lawyer, a philosopher/social science (digital culture) researcher. We want to unpack the issues, review the legal landscape, assess the ethical, philosophical and practical issues. We’ll take a somewhat humorous angle, and we hope the serious aspects of this won’t be underplayed. At the end we will try to capture a list of things all the workshop participants think is useful for law reform, service provider product reform and personal practical guides. It’s important that this not be seen as legal advice, and we hope that no-one takes offense, as none is intended. This was trialed at the Australian IGF (auIGF) and was extremely well received. The session will be led by Narelle Clark, a seasoned facilitator, who will ensure that the discussion follows the story line, and that issues are raised throughout. Questions such as: What is your digital footprint like? What online assets do you have? What happens to these materials after death? What laws apply? How do these differ from tangible assets? What can happen to your material after death? What are the norms in online funerals? What are the norms in online memorials? What are the costs and expectations of consumers in online memorials? Are avatars and online selves the same as real world ones? Can virtual selves exist after death? Description of Expected results: This issue affects every person who has ever been online. It is also a transnational issue of great importance. At the Australian IGF (auIGF) some participants felt a treaty was required to give consumers rights and control over their online assets. Others wanted their privacy preserved. With legislation now appearing around the world, and with existing legislation that varies distinctly, this session has an opportunity to nake a major contibution to emerging legislation and trade agreements. The workshop will try to capture a list of things all the workshop participants think is useful for law reform, service provider product reform and personal practical guides. This session will properly document this complex and compelling situation. .
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