Inheritance of Virtual Assets
With the
increasing penetration of ICT and the changing culture of the society,
users of ICT are accumulating virtual assets of various kinds. For example,
people buy domain names through registrars with substantial costs. They may
buy web hosting and ASP services. They also hold e-mail accounts and online
memberships for many paid service. Many professionals build assets such as
"Content", "Photographs" etc with IPR and place them in the "Cloud". There
are social networking sites such as secondlife.com, facebook.com etc where
the users might have built some virtual assets which have the possibility
of being converted into cash of the physical world. There could also be
accounts such as e-gold, e-commodities etc and which are physical
world assets converted into e-assets.
All these
assets are today kept at the disposal of an ICT user with the use of an
online account maintained normally with a "User Password".
In other
words, whoever holds the password, holds the assets. They hold the virtual
key to the virtual asset.
Let's now
imagine the unfortunate event of the death of the virtual asset holder. Now
as per the usual expectations, the asset holder is not supposed to have
shared his passwords with any person including his own kith and kin. He is
also not supposed to have written down his passwords anywhere. In such an
event the assets get frozen for no fault of the legal heirs.
The assets
include e-mail accounts which may contain valuable correspondence about
many of the physical world contracts and assets that the deceased person
could have built during his lifetime. If the e-mail account is not
accessible by the legal heirs, their rights guaranteed by law could be
adversely affected.
Having
granted recognition of a "Digital Contract" entered into by a person with
the use of electronic documents, there is a need for the regulators to also
pass necessary supplementary laws to enable the owner of the digital
contractual rights to transfer his rights through the inheritance laws.
Looking at
the Indian Cyber Laws as envisaged in the Information Technology Act 2000 (ITA
2000) set to be substantially amended through the Information technology
amendment act 2008 (ITA 2008), the current position in India is that there
is no clarity on the legal aspects of "Virtual Assets". Further, ITA 2000
and ITA 2008 has not given recognition to "Will" in electronic form.
In such a
situation, if a person approaches a Court of law in India and asks for a
succession certificate on the websites owned, passwords posessed etc by a
deceased, it is difficult to envisage how the Court would view the request.
Similarly, if a person leaves a will in written form but includes in the
will his virtual assets some described fully and and some not so fully,
(say the passwords which are subject to change from time to time", will a
Court grant a "Letter of Probate"?
Alternatively, if a claimant approaches yahoo.com or gmail.com and requests
that he be provided the password of the deceased because he is the legal
heir, how will such organization handle the "claim"?
The
undersigned calls the society to therefore start thinking on how we go
about to protect the virtual assets of persons.
Though the
"inheritance laws" are different statutes than the IT laws such as ITA
2000, there is a possibility of providing a relief for such cases under the
ITA 2008 through the rules being framed.
For
example, the ITA 2008 is going to prescribe "Reasonable Security Practices"
to protect "Sensitive Personal Information".
"Information Security" includes not only prevention of access by
unauthorized persons, but also ensuring that the information is "Available"
to the authrorised person. Under the OECD principles, as well as the Data
Protection Act of EU countries, it is one of the "Rights" of a data subject
to access his information which has to be guaranteed by the data
controller. In some cases, the liabilities of data protection applies only
to data of a "Living person" and hence is not applicable to the data of the
deceased persons. This does not however mean that the data of a deceased
person can be placed in public domain. In fact "Copyright" on the web
content created by a person may vest with his legal heirs for the next 60
plus years ! and therefore has to be accessible to the legal heirs.
Hence
"Reasonable Security" includes making the data available to the "Legal
heirs". Hence the rules to be drafted under ITA 2008 can incorporate how
the data of a deceased person can be made available to the legal heirs.
This would be an obligation cast on the "Intermediaries" who will hold the
data.
Naavi.org
therefore suggests incorporation of the following provisions in the ITA
2008 rules:
1.Every
intermediary shall demand and obtain the name/s of persons to whom
the assets in the name of the service users is nominated. The nominees will
be required to provide proof of death of the account holder and submit a
claim on the account.
2. Every
intermediary should create a "Claims-Ombudsman" to handle the claims.
3. Disputes
arising due to inheritance not resolved by the ombudsman should be met
through an "Arbitration" for which provision has to be made by the service
provider.
4.Virtual
assets of persons reported deceased need to be archived securely to enable
the claimants to complete the legal formalities that may be necessary for
the claims to be settled and should not be removed automatically after
expiry of some time in which the account has been inactive.
5.Before
removing any data on account of an account being inactive, the service
provider should make efforts to reach out to the account holder's last
known physical address.
6. Just as
the Banking system turns over the money in unclaimed accounts to the
Government, the unclaimed virtual assets of a person should be archived
with either a Government agency or a trusted private agency
designated by the service provider and accepted by the account user as a
part of the terms and conditions of the account creation.
Naavi who
presently provides the Cyber Evidence Archival Center is developing a
"Virtual Inheritance Assistance Center" at
www.ceac.in which will provide necessary guidance to Intermediaries
(e-commerce sites, web hosting or domain name registration companies) on
setting up of necessary procedures for inheritance management for their
clients. It will also provide support and assistance to the public to claim
and retrieve virtual assets of deceased persons.
Naavi
October 24, 2009
Related Articles:
Economics of Virtual Worlds:Virtual
Inheritance
Game players beware:
The IRS wants your virtual
assets
IRS taxation of online game virtual
assets inevitable - CNET News
Comments are Welcome at
naavi@vsnl.com
