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Every iCloud?

Every iCloud?

What happens to your digital assets when you die? This is probably not the first question that springs to mind when setting up your iCloud account.  However, in an age where more and more people are living their lives on the cloud, how to deal with an individual’s “digital legacy” is becoming an increasingly important – and complicated – issue.

Two weeks ago, a judge in the Central London County Court ordered Apple to give a widow access to her late husband’s iCloud accounts in order to recover photos that had been synced from his phone. This follows a three year legal battle with the tech giant to open the account, which held around 4,500 photos and 900 videos. Rachel Thompson wanted to access the account in order to preserve her late husband’s memory for her daughter.  The account also contained images of Ms Thompson’s father, who passed away shortly after her husband. 

When making her request, Ms Thompson emphasised the importance of these photos and videos over all of her husband’s other assets. With many people documenting their relationships and life events online, a person’s digital imprint is likely to form an important tie for grieving families. Unfortunately, getting your hands on a loved one’s cloud-based photos is not as straightforward as pulling old albums down from the loft.

As far as Apple is concerned, when you die all of your data stays right where you left it. Apple’s iCloud terms and conditions state that “Unless otherwise required by law, you agree that your Account is non-transferable and that any rights to your Apple ID or Content within your Account terminate upon your death. Upon receipt of a copy of a death certificate your Account may be terminated and all Content within your Account deleted.” For iCloud users, this means that a court order must be obtained in order to access a love one’s photos – which is likely to be a drawn out and expensive process.

iPhones are also particularly difficult to access in the event of an owner’s death. Data is not stored on a micro SD card you can simply remove from the phone; rather, it is stored in a memory chip built into the device itself. The question is therefore a simple one: either you know the password, or you don’t. Apple has categorically stated that it cannot access a dead person’s photos and videos where these are stored on a phone or tablet but not uploaded to the cloud. Transfer will not be possible, even where there is a court order.

Ms Thompson first took the issue to Apple in 2015 and was advised to obtain a grant of probate. Apple then insisted on a court order, and Ms Thompson instructed a barrister.  Throughout the process, Apple held a firm line – if the deceased person didn’t make it clear who should or should not have access to their account upon death, release of that person’s data could only be done where the court made an order to do so. Whereas it was easy to transfer over all of Mr Thompson’s physical assets, it was his intangible (and perhaps most valuable) assets that ended up posing the biggest headache. 

In ordering Apple to give Ms Thompson access to her late husband’s account, Justice Jan Luba noted that it was high time for an easier, and more cost effective, way to settle such cases. from the applicant’s perspective, this might involve changes made to the civil procedure rules to make the entire process run more smoothly and with less overall cost.

It has also been suggested that tech companies themselves do not go far enough, and that there should be a “digital duty of care” for families seeking to access the cloud-based personal data of their deceased loved ones. The idea of a digital duty of care has already been floated in relation to the social media accounts of deceased people, with Facebook recently announcing that they will be launching a new AI algorithm to manage memorialised accounts and adding more powers to “legacy contacts” nominated while the former user was still alive. Whether Apple will follow suit remains to be seen – although the tone of this recent case suggests that such a move is unlikely.

Ensuring that your loved ones are able to retrieve photographs and videos after you’re gone is something that most people will not give much thought to.  However, with tech giants ensuring that all of their data is encrypted and absolutely secure, more and more hurdles will likely be put in place for those people who simply want to preserve memories of friends and family. Apple have sent a very clear message; that in the absence of a court order, your loved one’s memories will be kept under lock and key. 

By Kirsteen MacDonald
Director

Burness admin