Robbins: What happens to your digital self when you die?
We have all had the experience: “Congratulate (fill in the blank) on his/her work anniversary!” Except that that person is no longer alive.
In fact, many times, the poor unfortunate has been gone for many years. There is one gentleman in my own circle who has been gone for the better part of a decade but every year, like clockwork, LinkedIn reminds me to congratulate him on — perhaps a bit ironically — his longevity at work. Perhaps he is as industrious in St. Peter’s workshop as he was in life.
A question arises, in separating ourselves from our virtual selves: What happens to the Silicon-based us, as opposed to the carbon-based us, when the latter of the two expires? What happens to your messages, emails, texts, social media posts; the list is “virtually” endless even if you, yourself, are, well … not so much.
In 2019, Twitter’s announcement that it was going to delete inactive users drew a wave of protest. It turned out that a significant part of the backlash was from the survivors of the dearly departed who feared that if Twitter did as promised, meaningful traces of their loved ones would be erased. While this sort of digital archaeology is interesting in itself, what rights do the deceased and/or their heirs have in protecting themselves from hackers, scammers, and other unsavories who have been known to impersonate and profit from the dead?
What if what you had online, besides your likes and dislikes, opinions and the like, had value? What if the family photos were online, or maybe cryptocurrency, which — to the degree that cryptocurrency really has any value — was stored on the cloud of the departed?
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One of the big questions then is: Who owns that data? Is it the tech companies, the account holder, or some other user? And even if the account holder is, in fact, the owner, is the data an asset than can be inherited? More, if Facebook, or Twitter, or another site’s data can be inherited, are all social media accounts and sites the same? What if a site is foreign? What about Weibo, Odnoklassniki, Douyin, or others? To the extent there are, or will be United States laws governing these matters, are these foreign companies subject to them, even if their platforms span global borders?
To help preserve your accounts, can you assign them to others?
Not surprisingly, various companies have recently arisen whose aim it is to preserve your digital stuff on your behalf.
Weirder, perhaps, is the next frontier. What if, however you preserve your digital self, that other self remains virtually “alive” and could even interact? If there were algorithms sophisticated enough to interpret the real you and determine how, if it were you tapping at the keyboard, you would have replied, could the digital you — long after you are gone — carry on a conversation? If so, what then might those implications be? Could you get your Silicon self in trouble or could you get those flesh and blood beings left behind in some sort of mess? How would we parse out real from weirdly almost-real communications?
Something else to consider: In this era of digitally signed documents which has accelerated with lighting speed in the age of COVID-19, how could we discern (however oxymoronic this may sound) a real virtual signature from a virtual virtual signature? How would one know if it were you instead of the virtual avatar of you?
If you think this isn’t possible, well hold your horses just a sec. When is the last time you dialed up a customer service line and found yourself speaking to — or at least wondering — if instead of chatting with a living, breathing person, you were instead hooked up to an artificial intelligence “being”? “What can I help you with today?”
Of course this could be wonderful; those left behind could chat — at least sort of — with those they lost. But it could just as easily be misused. And, by the way, this potential for abuse is not limited to those who have passed. What if your online you was hacked while you were still kicking and got you into some sort of trouble; a contract you knew nothing about, or worse, a crime? What sort of defenses would there be and what sort of forensics would be required to parse it all out? Would our lives and fates rest in the hands of nameless techies?
On a human level, if someone is still sorta, kinda alive even when they’re gone, are they truly gone and can we appropriately grieve? What if, to corrupt a “Love Story” phrase, rather than love meaning never having to say sorry, it meant never having to say goodbye? Even it the person was no longer really there?
If someone is not fully dead, might we have to reinterpret the laws that come into play on death? Could your virtual self still own — or at least make a claim to — certain property rights?
Does all of this minimize or marginalize “being”? What does it mean if the world can still appreciate you, but you cannot appreciate anything at all?
Let’s get even weirder. What if, instead of A.I., you could truly download your brain? Although your corporeal being might have turned to dust, what if your very essence — your thoughts, feelings, hopes, fears, memories, and personality could live on, how might that shake things up, socially, culturally, and legally? Even if your virtual brain couldn’t grow after death, isn’t memory self? Is that enough? Is that the same as consciousness?
If your downloaded essence could think and interact, then what? Could our brains, if not our bodies, get to Mars or even beyond?
As wild as all this seems, so did computers, Internet, mobile communication, and a zillion other quotidian things not very long ago. The future is on its way and we individually, culturally, and legally would be well-served to hash this all out before it is delivered to our thresholds.
What does the future promise? Who truly knows? Who will or should be part of the future? Channeling former president George W. Bush, who should be the decider?
But if past is prelude, buckle up! It promises to be a wild ride.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest LLC. His practice areas include: business and commercial transactions; real estate and development; family law, custody and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale)” and “The Stone Minder’s Daughter,” are currently available at Amazon.com — and coming soon, “Why I Walk So Slow.”
