Digital Death Ethics and Law
Digital Death: The Ethics and Laws around the Digital Afterlife
Author: Emily Temple
Definition of Project
This project investigated the current standing of digital rights of individuals in the digital afterlife. In order to discover the most relevant information, a limit of ten years was placed on the articles researched. Keywords that were used to retrieve relevant articles where “digital afterlife,” “digital rights,” and “digital afterlife industry.” As personal digital privacy intersects with the right to be forgotten, some articles in relation to that were also researched with keywords “the right to be forgotten,” and “digital privacy.” This topic covers many disciplines such as law, technology, philosophy, archives, history, and social science. Databases that were used are SpringerLink, ProQuest and EBSCOHost. No specific area was used to find relevant information, instead a focus was placed on specific authors and citation chasing was used. The specific authors in the field that were found to be particularly relevant were De Baets, Harbinja, Ohman, and Solove. The research focused on what an individual owns digitally, what rights they have to those assets pre and postmortem, and the various laws that surround digital privacy in relation to preservation. The articles below represent that approach.
Annotations
Ambrose, M. L. (2012). You are what google says you are: The right to be forgotten and information stewardship. International Review of Information Ethics, 17, 21-30. doi: SSRN-id2154353
The right to be forgotten is a contentious issue that concerns information stewards as well as individuals. Ambrose proposes that though deleting records and data does seem contrary to ideals and goals of information stewards, it is something that can still align with current archival goals. The suggested way is by allowing false light claims to identify “information that is void of the context” (Ambrose, 2012, p. 29). A false light claim is a claim that the information published is false or misleading and is offensive or embarrassing in a reckless manner to the party it concerns. Allowing information to be altered under that claim, falls under the desire of information professionals and aligns with the desire of personal privacy. This article helps bridge the gap between individual digital rights and information steward’s preservation goals. Though removing or deleting information is not ideal, curating accurate information is.
Black, S. (2019). The implications of digital collection takedown requests on archival appraisal. Archival Science, 20(1), 91-101. doi: 10.1007/s10502-019-09322-y
The implications of the right to be forgotten are immense. The balance of protecting history, while protecting the privacy of individuals creates a set of conflicting criteria for preservation. Though many are fighting against the right to be forgotten and standing against it, Black suggests that policies be created to allow for the removal of information. In order to foster trust in clients and patrons, laws must be followed and the best way to avoid scrutiny is transparency. Though this article focuses on data privacy in archives, any data management department can utilize the suggestion as transparency may be the best course in the current time of deep fakes and “fake news.”
Buitelaar, J. C. (2017). Post-mortem privacy and informational self-determination. Ethics and Information Technology, 19(2), 129-142. Doi:10.1007/s10676-017-9421-9
This article evaluates the current laws around the right to privacy postmortem, in particular refencing online information. Though Buitelaar does suggest creating and maintain privacy regulations, there are no current laws that support this. There are a few legal solutions that are suggested and argued in order to provide a clear way to prove a postmortem person has a right to privacy. This, however, has not been proven and is currently just plausible. This article contrasts with other articles that simply rely on moral and ethical arguments for the right to privacy postmortem. It provides a base argument that could prove useful in terms of the legality of post-mortem privacy.
De Baets, A. (2016). A historian's view on the right to be forgotten. International Review of Law, Computers & Technology, 30(1-2), 57-66. doi:10.1080/13600869.2015.1125155
De Baets presents a brief history of the right to be forgotten and how that right differs between public and private figures. This briefly explains the complex issue of shaping the public memory of a figure within the bounds of law in both the European Union and the United States. While it is by no means an exhaustive understanding of the complexities of either law system, it does help to gain a grasping of what to expect in both. De Baets explains that in general one can expect to have a hold on personal privacy for about seventy years posthumously in the United States, though that is not always the case. There are a multitude of factors that cannot simply be accounted for. The rights to erase personal information are protected in some cases. This article helps to understand the laws and how they are applied in various situations to give context and applicability.
Harbinja, E. (2017). Post-mortem privacy 2.0: theory, law, and technology. International Review of Law, Computers & Technology, 31(1), 26-42. doi:0.1080/13600869.2017.1275116
Harbinja (2017) suggests that “autonomy should in principle transcend death, allowing individuals to control their privacy/identify/personal data post-mortem” (p. 30). This article addresses and analyzes the applicability of the current laws of the United Kingdom, the United States (U.S.) and the European Union to postmortem privacy. It explains how some laws in the U.S. do apply to that privacy and how that privacy is protected in various states. There is also mention of some companies support of post-mortem transmission of digital assets and protection. This all supports the idea of individuals having control in the transmission, deletion and general management of digital assets port-mortem. This type of control could directly affect, positively or negatively, how information is stored by archives and digital management professionals.
Harbinja, E. (2014, December). Virtual Worlds – a Legal Post-Mortem Account. scripted, 11(3), 273-307. doi:10.2966/scrip.110314.273
Though this article focuses on the context of virtual worlds it is very comprehensive in explaining ownership of digital items. It examines “legal concepts and laws of property, contracts, IP and consumer protection” (Harbinja, 2014, p.1). These concepts and laws are not limited to virtual words and can be seen in relation to any type of content purchased online. This article helps to contextualize and understand who owns the data of individuals pre and postmortem.
Henttonen, P. (2017). Privacy as an archival problem and a solution. Archival Science, 3, 283-303. doi:10.1007/s10502-017-9277-0
There are many ways that the processing and archival of information directly relates to protecting the privacy of individuals. Henttonen (2017) gives five “societal strategies” to help record keepers protect personal privacy (p.290). As the personal and private spheres are colliding in a technologically advanced world, those spheres are also being recorded. How those spheres are recorded and managed is becoming a growing problem. Though the five suggested strategies all have pros and cons, the main overarching theme is the need for archives and records keepers to defend their data management plan. Henttonen (2017) does, in the end, suggest following anonymization according to the “first European code of practice,” but the focus is more so on bringing the legal, and moral discussion of privacy to the forefront (p. 300). This helps shape the argument to defend how private information is preserved.
Ohman, C., & Floridi, L. (2017, May 24). The political economy of death in the age of information: A critical approach to the digital after life Industry. Minds & Machines, 27, 639-662. doi: 10.1007/s11023-017-9445-2
There is a growing commerce around data and information left behind, this is described as the “Digital Afterlife Industry” or “DAI” (Ohman & Floridi, 2017, p. 639). While this industry grows, data management systems are being brought into an ethical and moral discussion, as laws have not caught up with the digital afterlife. There is currently little to no regulation with the information left behind, but there is a growing desire for that information. It is a commodity for companies, and it is a comfort for the people left behind. While Ohman and Floridi do not offer much in the way of guidance into what to do with data management when dealing with deceased individuals, they do give the entire issue a greater sense of clarity and definition.
Solove, D. J. (2013, May). Introduction: Privacy self-management and the consent dilemma. Harvard Law Review, 126(7), 1880-1903.
The digital rights of individuals are murky because data laws in the United States do not halt any use of data unless specifically stated. This contrasts with the EU where consent is consistently required in the use of personal data. In the United States (U.S.), individuals must have a more active role in the management of their data. In addition, U.S. law requires an understanding of data and data management that many do not have. Solove helps explain those issues within the U.S.’s current digital privacy management laws. As time goes on, individuals are gaining data rights, while also gaining more concerns in relation to data management. This tension is likely to become more apparent as we progress and is going to necessitate laws to accommodate and address the everyday person.
Stokes, P. (2015). Deletion as second death: the moral status of digital remains. Ethics and Information Technology, 17, 237-248. doi: 10.1007/s10676-015-9379-4
Stokes provides a comprehensive argument against deleting social network service profiles. Though others provide an argument relying on laws and ethics, Stokes strives for a philosophical perspective. It illustrates the idea of connecting the information presented online with the individual in reality. This connection is particularly present on social network services. Though there are many other types of personal data, this facet is more closely related to a ‘human’ experience. In regard to that humanistic comparability, Stokes (2015) urges that profiles should not be deleted as it would be a “second death” (p. 237). This is a good way to understand the more emotional connections that many have with personal data.
