Valerio Porcu's opinion

valerio porcu

Valerio Porcu,

EDITOR


Senior Editor for Tom's Hardware Italy

Partner of the publishing group "L'Espresso"

"Journalist. I write about technology, science, privacy, cinema and other geek topics of Toms's Hardware Italy. Toms' Hardware is a magazine published by purch.com and partner with the Italian Editorial Group 'L'Espresso'. "


Introduction:

There are five tales. Five funerals, five mourning families. Five people that left this world, three of them quite young. Five deaths and one red line: if part of our life is online, then the same goes for our death. For now, especially in these cases, Internet manage to mess things up a lot.

Once upon a time, it was common to end an online chat with the words "good RL". It means "have a good Real Life", and it implies a quite strong separation between these two worlds. Maybe this was true, but today there is only one world. Everything is real, everything is solid. On Facebook and Twitter we are the same person that hangs out with friends on Friday evening, and the stuff Apple or Microsoft sold us is as ours as the things we buy at the mall. They should be, we wanted them to be – at least for those who know how things are running today.

It should be obvious, then, that our online life is treated like the traditional one, with the same respect and the same kindness towards relatives, friends and their struggles. It's just normal, we should think about the future, write a testament to avoid our sons to fight over our belongings, or to decide to whom our horrible pop music collection should go.

At the same time, we should be able to take some things as granted: that our Digital Self will get respect, in death, from people and from institutions, and that digital properties are automatically passed along to our heirs. It should be obvious, but there are four stories that tell us the opposite.


Five stories

Hollie Gazzard The first story comes from Gloucester, Wales. The first story comes from Gloucester, Wales. A place where it was likely to rain on February 13th, 2014. Hollie Gazzard was almost done with her job, at a beauty salon. And probably those where not happy days for her, she had broken up with Ashley Masling just before Valentine's day. One of those things that makes you say "o my gosh, what a bad luck".

For Maslin, however, it wasn't enough blaming the bad luck. He entered the beauty salon and stabbed Hollie, she was 22, he almost killed her. She would die shortly afterwards at the hospital, and would never know that he was going to get a life sentence. The judge said that this was"a merciless killing.".

How could a 22 years old girl be worried about what was going to happen after her death to her Facebook profile? How could she imagine that her father had to fight hard with Facebook, only to convince the US based company to remove the snapshot that portrayed a smiling Hollie with her killer?

What happened is that Facebook memorialized Hollie's profile. When a profile is memorialized, nothing and no one can change it, according to Facebook policy. A policy that, you guess, was developed without asking someone that knew something about loss.

Nick Gazzard, Hollie's father, had to build an international campaign in response to Facebook's denial. He got support from 11.500 people, and in November 2015 he got his victory.

Becky Palmer The second taleris from the UK too, from a town named Kingswinford. There lives Louise Palmer, who in 2012 was 47 and was facing the loss of her daughter Becky, died at 19 from a brain tumor.

During the last months of Becky's life, she and Louise logged together in Becky's Facebook profile. The mother read and wrote for Becky, things that had become almost impossible for her due to her condition. After Becky's death, Louise kept logging in, looking for some relieve in reading old messages.

Just for a while, until Facebook memorialized the page, totally blocking the access. And in doing so it hit her again, opening a wound that hadn't stop bleeding.

"I can't believe Facebook can be so heartless and inconsiderate. The loss of my only child has been heartbreaking. But at least in my darkest hours I could login to her Facebook account and read her messages remembering her as the vibrant girl she used to be", she told to The Daily Mail.

Daniel Rey Wolfe The third story comes from Tulsa, Oklahoma, USA. Here lived Daniel Rey Wolfe, former marine who, in may 2014, loses to depression and decides to commit suicide by putting a knife in his leg. And, perfect symbol of our age, documents everything on Facebook. The ones who see the photos of the bleeding body try to help, but no one makes it on time.

Then relatives and fellow soldiers ask Facebook to remove those images, but the answer from the company is chilling. That same company that banes a bare too exposed and art works that are regularly printed on school books.

The photos from Daniel, according to Facebook, are of the kind labelled as "call for help". Hiding them would mean muting such request. So who was asking to delete them just got an automated answer, sent by a computer which duty is to avoid true contact between real people – which is, being Facebook we're talking about, ironic at the very least. Then, after insisting requests, Facebook got the message e the photos were removed.

Peggy Bush The fourth story is less dramatic and comes from Canada, near the USA border.The main character is Peggy Bush, whose husband died from age. Good manners force us to suppose she is a nice granny and she had a happy marriage until the last day.

What is relevant to us is that Peggy, 72, after mourning thought she could go back using the iPad and the Mac she shared with her husband. She wanted to play a game in particular, that stopped working. Her daughter suggested, wisely, to delete e re-download the app. So a problem appears.

Peggy found out that the PIN to unlock the device wasn't enough, and she needed the password from her husband's Apple account. A password that him brought along to the tomb.

At the time it seemed right to ask Apple for the password. After all, a widow is entitled to the pension, the house, the car and everything else. Why should an Apple account be any different? We don't know, but we know the company didn't accept a request nor a death certificate. They asked for a court order. One of those that are emitted to authorize investigations about criminals. Well, we don't know how dangerous miss Bush could be, or what damage she could cause playing with her iPad.

Even if the devices can be hers, Peggy has no right over the apps her husband bought. Peggy, if she really wants con continue playing, will have to create a new account and buy them again. This news are from January 2016, and currently the story is not over. But you can easily guess that Apple at the end will surrender. But again, you can't rule out the possibility that Peggy follows her husband, and maybe her sons will have to get through this all over again.

Leonardo Fabbretti The last story, and also the newest, is all Italian. Concerns Dama Fabbretti, killed by an osteosarcoma when he was a teenager. Leonardo's father would like to unlock his son's iPhone and be able to see and save his child's last pictures and messages. The child he can't hug anymore.

There shouldn't be a privacy issue at all, since Dama had recorded his father's fingerprint on his smartphone to let him unlock it at anytime. But after a restart or a shutdown the iPhone requests a code, and Leonardo doesn't have it.

Useless are the requests forwarded to Apple, and probably also a sue will be pointless - if Leonardo really decides to take legal action as suggested in a recent interview. Since even the FBI seems not to have the authority to unlock an iPhone protected by a PIN code, what on earth could a father from Foligno do? We give him our best wishes, but maybe for him there won't be any solutions; for those who want to avoid such situations, however, there is a possible solution.


Death and bureaucracy, let's start again:

Internet made a lot of things simpler, but dying got much more complicated.

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The death of a beloved one, for relatives, is even harder since they have to deal with bureaucracy too. Every one wants to get rid of the paperwork as fast as possible, especially because it doesn't help going through mourning. And in the case there was a digital life too, everything would be much harder.

But you can't go luddist with this, slamming all modernity as a whole, everything hi-tech. That would get you into the sad "old times were better". We can't avoid change in our lifes, there's no way back, and that's ok.

Nonetheless, this five tales tell us that some changes have to be managed carefully, very carefully.

Fact is, when a friend or a relative dies we are now forced to deal with this new giant companies.They are bigger and more powerful than many states, they have their own rules, which are not built – not even theoretically – over well being of their citizens or respect of their rights.

Facebook, Apple, Microsoft, Amazon, Google; we have to deal with them in order to delete a photo, to get a virtual legacy, to respect us in a proper way and the people we lost.

According to many experts this matter is a growing problem. Currently, there aren't true answers. These companies simply have no rules to follow in this cases. Facebook memorialize the personal profile, and in some cases this can resemble more of a cruel joke. The others, simply put, don't recognize the idea that one's digital life can have an heir. In the case of Apple, at least, this is written in the user agreement.

When we buy something in a shop, it's not like when we buy an app from Apple, an ebook from Amazon, a movie from Microsoft or music from Google. It's the same word (the lexicon should be the first problem to be solved), but in the first case we get in possession of something, that we can then leave as a legacy. In the second case, instead, it's more a long term rent.

The app or the movie are not truly ours, so we can't pass them along to our heirs. For this Peggy Bush had her problems with Apple, when she asked for her husband's password: Apple doesn't want to recognize her a right over the digital properties of her husband, nor the company has a legal obligation to do so. Facebook doesn't have to comply with the requests of a father suffering for his brutally killed daughter, or the ones from a mother in misery, or from the relative of a man that lost to depression.

There's not a ultimate solution to this problem, and there won't be one until we'll have laws, local and international, that forces these companies to behave in a certain way. Maybe this will never happen, and if it comes to happen, we can't be sure these businesses will respect the laws we want them to.

But there's something you can do. You can use Box Tomorrow to create your own digital legacy. You can store your passwords in it, along with digital properties of any kind, secrets, messages. You can name one or more people that will be able to open it after your death. A simple thing, that nonetheless can mean a lot for the people that will stay in this world after we're gone.

Valerio Porcu

Lawyer's response

Francesco La Russa

In some ways, the right has always existed since the dawn of human time. Rights become practical standards, norms. Norms are, in principle, rules. Rules exist not only for the human world but also for the physical one. Like it or not, we naturally tend to regulate our lives, especially our social life. The Italian civil law has its roots in Roman Age. The rules that are applied for the legacy in case of death are mostly "copied" from the Roman law and readjusted for the modern society. Hundreds of years of improvement and refinement of inheritance law should not be wasted. Everything changes: the society, the human thought, the traditions etc., but the death remains the same. The right, like the society, evolves with the technologies. As we said, norms can be adapted to every situation, regardless of the age. But the readjusting process takes time, especially when the internet world is involved. Since the world wide web doesn't have any boundaries, it is difficult to decide which country law has to be followed. In theory, it is possible to find the answer to this question. But will the answer be practicable? For example, if I have to sue Facebook Italy and, by assumption, is competence of the Italian judge, it will not be easy: in addition to the prolixity of the Italian justice, many other problems will surface. Which law will apply? The Californian law (where the Facebook headquarters are)? Let's assume so. The Italian judge will end up dealing with two different legislations, since some Italian laws will have to be applied anyway.

If this is the case, the time of justice will increase excessively, not to mention the costs! If it is possible to make the two judges agree, do you think the costs won't rise again? To sum up, the way can be found but it will be an extremely difficult one and probably impassable. Since the majors online companies have their headquarters in the USA, also the majority of laws concerning the Internet were written there. Our goal is to let you avoid all these troubles, and show you a new way out.

First of all, if your intention is to pass on your online heritage we suggest you to use BoxTomorrow or similar services. BoxTomorrow allows its users to share different kinds of files (also the online accounts and their passwords) after their death to designated people – that can be called beneficiaries of heirs. With the encryption system used, among other things, it will be difficult to "divert" the content to other individuals, even if it is the decision of a judge, keeping the deceased wishes safe.

Secondly, it is a good idea to refer to your legal/notary if expert on the subject, so as to find another way consistent with the law.

The combination of these two roads will greatly increase the chances of "concrete"protection of the deceased. Even if the legal solution, proposed by the expert concerned, is in the fact - after our death - difficult to achieve, there will still BoxTomorrow to guarantee it "virtually." And vice versa. We just hope that the legislature (national or supranational) will find a permanent solution to this problem, possibly before the end of our days!

Francesco La Russa born in Palermo, Class of 1986. Computer expert. Degree in Law at the University of Padova. University of Trento and Verona graduate, specialized in legal professions. Currently PhD student in private law (thesis topics: hereditary succession in the digital heritage) at the University of Padova.

  • Junior mentor at the law school of Treviso/Padova.
  • Co-author of the Brief Commentary on Civil Law - Cian/Trabucchi.
  • Lawyer, member of "L'Ordine di Rovigo".