Friday, March 30, 2012

Episode 21: Your legacy in the cloud & your rights (or lack of them)

As we shift more of our lives onto the Internet, & thus into the Cloud, we commit our lives either unconsciously for some or fully in the knowledge for others to big data, big business & profits for big business. It has long been sci-fi lore that humans would interface with computer systems uploading their vast knowledge & consciousness to cyberspace to 'live forever'.

But we don't. We die. And when we pass on, there's an estate that is disposed of either via a will with an executor etc, or via the granting of a letter of administration. But, our worldly possessions now are not just limited to the contents of our homes, bank accounts etc., we're all actually the rights holders to our information, our likenesses, & our works we publish on the Internet (unless you sign them away like FaceBook's terms & conditions).

For a long time in the 20th century, loved ones left behind photographs, slides, books, journals, diaries, mementos from trips, postcards. In the 21st century we're looking at Flickr albums, FaceBook wall entries, Twitter accounts, FourSquare pins, GMails, & countless other digital footprints from our lives. Even our own hard-drives of photos, movies, & music. The legacy of our lives can now be measured in ones & zeros. And with many of these future legacies, a problem arises; access to them to retrieve & pass on.

To use one of my own examples, when my maternal Grandfather passed in the mid 80's, he left an absolute treasure trove of things; photographs, negatives & slides from his countless travels around the world, some of his books with his notes written in them, some of his naval belongings - many of which today, I treasure greatly.

Zip forward about 25 years, & I look at my own little collection. Up until around 2000, I've a fine collection of photographs & negatives, along with trinkets & some writings from countries, cities & towns I've been from around the world. However, after that I'm seeing lots of digital photographs, my musings/writings are exclusively digital. I've e-mail accounts I've held going back to as far as 1995. I've a fantastic collection of gaming moments across a number of MMO games I've played (and some I continue to play today), along with many other exclusively digital assets.

As I go on in years, these will no doubt increase substantially. And when I inevitably pop my clogs, I will have to ensure I've a list of password details written down somewhere to allow my loved ones retrieve everything. But, what happens if something happened before I had time to plan for this eventuality? Should I already be creating a password safe of sorts? Convention on security would tell you creating one of these is absolutely insane, yet on the flip side, how else would loved ones retrieve everything else? It's not as if they can ask the service providers to hand over the data, as the contracts of use are between me personally & the providers, it's not like financial assets after death that form part of an estate.

Which brings on the more interesting question; while our personal data is recognised in data protection acts as our own, should our personal data now in turn form part of our estate legally? Should there be provisions for this in data protection legislation?

In the UK for example, 'property' when dealing with a dead person's estate is defined as follows:

"'Property' includes houses, real estate generally, shares, antiques, jewellery, works of art, and intangible property such as patents and copyrights."

and according to UK law, access to that property happens as follows:

"If the deceased held property in their sole name, and they left a valid will dealing with the property, the property will usually pass in accordance with the will. If the deceased left no valid will, or a will that did not deal with the property, it is dealt with under the law of intestacy.

If the deceased held property with another person or persons, the deceased's executor or administrator needs to find out how the property was owned. Where the property is a house, there should be written documentary evidence of the type of ownership

In Ireland, under Ireland's own 1965 Succession Act, property is defined as "includes all property both real and personal", & none of the references seem to make direction to copyrights and or patents. part of the problem globally seems to be the lack of establishment by courts how some one's online services relate to transfer to estates upon their passing. This is not a new issue. It is an issue that has been questioned for a number of years, & a really good example to read is Thomas Scrampton's piece in 2009.

One of the leading writers/speakers on this area is Lillian Edwards, who is currently Professor of e-Governance at Strathclyde University. In mid 2010, she gave a talk at Wolfson College about 'Death & the Web', which raised many interesting statistics. More recently it has again come up for discussion, with Laurence Eastham writing about it for SCL, which was prompted by a press release by UK law firm, Rothera Dawson Solicitors.

And yet, in Ireland as a country pushing forwards as a central player in Digital Europe, apart from us having our cyber security act buried on some civil servants desk now for over a year in the life of this Government, & unimplemented from the last residents of the Government offices, there is no discussion about us moving this important area of legislation, or legislative discussion forward.

It is all well & good to push the agenda of Ireland as a centre of cloud excellence & influence, but if our legislation around data in the cloud continues to be woefully inadequate due to ill informed politicians, civil servants with their own agenda of 'not rocking the boat' & businesses who in general have a poor level of awareness of data protection & their legal requirements/compliance, & a no-one in the legal sector even spotting this is a ball that needs picking up & running with, we are heading for a massive storm amongst our clouds.

As the cloud finds itself becoming part of the discussion on rightsholders & their legal reachs via SOPA/PIPA/ACTA etc - why are we not asking for the rights to our own creations/works/digital assets to remain with us? Surely as the discussion about privacy is front & centre to the Cloud & digital media/social networks, our rights to our own content must become part of that fabric of discussion, & part of the discussion as 'rightsholders' in our own sense.