Who owns your digital afterlife?

September 14, 2015

SAN JOSE, Calif. ó When a landlord discovered the body of bestselling novelist Marsha Mehran last year in a seaside Irish cottage, the 36-year-old had left behind a trove of literary work.

Some of it, such as the international hit "Pomegranate Soup," can be found in libraries and bookstores around the world. Other writings were stuck in the Internet cloud, including a password-protected account that only Google knew how to open.

What happens to our emails, online searches, or ó in Mehranís case ó digital manuscripts, when we die? It took costly legal maneuvers this summer stretching from Australia to Silicon Valley for her grieving father to find out.

"I wanted to know if Marsha left any notes, anything about her sickness, or about what was going on in the last year or two," said Abbas Mehran. "Whatís the difference between the notebook my daughter left for me, with all the secrets of life, and the digital account that Google has?"

A surge of families struggling with similar questions is driving a behind-the-scenes political battle between tech companies and estate lawyers over who gets the keys to someoneís digital afterlife.

In California, lawmakers will vote this month on a bill backed by Facebook, Yahoo, AOL and a lobby group that represents Google, Microsoft and Apple. Assembly Bill 691 would deny families access to emails of someone who died unless a court finds the person had consented to passing them on to heirs; other digital assets such as photos and documents would also be restricted, with an exception for recent files that affect an estateís finances. By favoring personal privacy over a familyís wishes, the companies hope to appeal to the unspoken will of their users while also lessening the bureaucratic hassle of complying with millions of posthumous requests.

"Most people expect the contents of these online communications to remain private, even after they pass away," wrote the billís author, Assemblyman Ian Calderon. "According to a recent Zogby poll, over 70 percent of Americans say their private online communications and photos should remain private after they die," unless they gave prior consent to release their data.

As it has with other laws, California could set a national precedent. But other states are looking to adopt competing legislation favored by the estate lawyers who represent families of the deceased, and want to give survivors broad rights to access digital data.

Describing Calderonís bill as "written by and for technology companies," Evan Carroll, co-author of the book "Your Digital Afterlife," said it "goes against the way estate law has worked for a long time" by restricting access to a deceased personís online accounts without prior consent.

"Many of our privacy rights expire when we pass away," Carroll said. "Sometimes a family says, ĎI donít want to read his or her emails. I want my memories the way they are.í Thatís completely valid. But certainly an archivist would argue that often just as important as the manuscript (are) all the notes and correspondence. It reveals more about the authorís thought process and the decisions that were made, how the work came together and what the author was thinking."

Some companies, such as Yahoo, destroy everything and reveal nothing after a user dies. Others take a case-by-case approach. Facebook and Google now have online tools that allow users to choose their digital heirs and how much they want preserved or deleted upon death.

Marsha Mehran did not take any action to preserve her Google, Yahoo or Hotmail accounts ó most 30-somethings donít.

But she also wasnít a typical 30-something. Nearly a decade before her death, Mehran catapulted to literary stardom with her debut novel "Pomegranate Soup," published in 2005 and now scheduled to become a feature film.


Her works culled from her peripatetic life. Born in Iran before the 1979 Revolution that forced her family to flee, raised in Argentina, Florida and Australia, she fell in love with an Irish bartender in New York City and lived with him in Ireland and Brooklyn. The married couple ran their own grass-roots publicity campaign before Random House connected Mehran with professional publicist Lanie Shapiro.

"It might sound strange or even silly to say, but there was a little bit of magic to her," Shapiro said in an interview. "She was one of those people who just lights up a room when she walks into the room."

Her success continued in 2008 with a sequel, "Rosewater and Soda Bread."

But her father said Mehran also suffered personal turmoil in the last years of her life. He blames much of her emotional distress on U.S. immigration officials in Ireland who denied her a visa to return to the United States. Her husband helped fight her immigration battles, but eventually they grew apart and divorced.

Mehran moved to a vacation cottage overlooking northwest Irelandís Clew Bay in mid-January 2014, living alone and with little contact with neighbors or anyone else. It was in the shadow of Croagh Patrick, the same mountain that loomed over the fictional setting of her bestselling novels. She told her landlord that she had come back to write another book, according to documents provided to the San Jose Mercury News by the coronerís office of southern County Mayo.

When her landlord tried to contact her about rent issues in April 2014, Mehran explained that she was sick and had been vomiting blood for weeks.

"Iíll get back to you in a few days," Mehran wrote.

The landlord offered to help and kept calling and texting for about two weeks, receiving no response. She finally let herself into the trash-strewn cottage, discovering Mehranís body facedown, wearing only a cardigan. Along with her digital and computer records, her father said she had left Post-it notes strewn about describing story characters and other literary details.

"She had apparently thrown herself completely into writing," the landlord wrote in a sworn document.

An inquest completed in mid-December ruled out foul play but was otherwise inconclusive, declaring: "The medical cause of death is underlying diseases which are unknown."


Abbas Mehran this year became determined to recover whatever lost literary work could be found in his daughterís digital archives, and he hoped to trace her Web footprints to some clues that would explain her physical and mental deterioration. He first needed access to her Chromebook, a laptop running Googleís Chrome operating system.

He wrote four emails to Google, receiving no answers. He finally reached a support hotline, finding helpers who "had some humanity, a sense of human feelings about my situation," he said by phone recently from Boolarra, the small town where he lives in southeast Australia. He learned that he would need to show Google a court order to get access.


Both Calderon, who introduced the California bill, and the estate lawyers who want more power for executors say this is the kind of legal turmoil they are trying to reduce.

Carroll said lawmakers should think of online accounts as holding memories, not just private communications.

Tech company lobbyists, while they prefer the California bill, have been working hard to win concessions from the nonprofit Uniform Law Commission, run by lawyers appointed by each state who craft language that can be adopted nationwide. The commissionís earliest draft would have given executors access to the content of emails of the deceased, even without their prior consent.

But tech companies and privacy groups quietly pushed back, and the commission has come up with compromise language that gets closer to the California bill in deferring to user privacy.

"We came to understand that a lot of people view email a lot differently (from paper mail)," said the commissionís Ben Orezske, noting that digital accounts automatically archive but people save only the most important paper documents.

As the negotiations reached a boiling point this summer, they were of little help to Mehran, who was struggling to navigate the arcane system of current laws and corporate policies.


He searched for help online and found one U.S. lawyer, paying him $1,000 only to discover that the work would cost another $10,000. So he kept looking.

"I went searching and I found Kafka," Mehran said.

Not Franz Kafka, though something about Mehranís nightmarish wrangling with an invisible, omnipresent power seemed a little Kafkaesque.


And the Prague writer had his own conflicted feelings about posthumous writings, most of which would never have been published had a friend observed his wishes.

"Everything I leave behind in the way of diaries, manuscripts, letters, from others and my own, sketches, and so forth, to be burned unread and to the last page," Kafka wrote to the man who would later publish his greatest writings.


But no, the Kafka who came to Mehranís rescue was Joe Kafka, a San Jose lawyer and self-published writer.

"I was lucky to find Mr. Kafka, who was very brilliant, very efficient, very effective," Mehran said.

In June, Mehran filed a lawsuit against Google in Santa Clara County Superior Court seeking access to his daughterís Google Drive account. He limited his request to documents, believing that Google would object to disclosing the emails. After several weeks of negotiations, Google complied with his request, sending a CD to Kafka, who mailed it to Australia this month.

Mehran was overjoyed when he inserted the disc and found more than 200 documents. But he grew nervous as he discovered that many were empty, or redundant.

His daughterís last work, "The Saturday School of Beauty" (known as the "The Margaret Thatcher School of Beauty" in Australia), was nearly complete and already in the hands of publishers before her death. Her father also found other writings in her Google files. One was a new work, which she had named "Fairytale of New York," apparently after the bawdy Christmas song by Irish band The Pogues, but it was in its earliest stages.

The documents also included excerpts from "Pistachio Rain," expected to be the third in a seven-part series that began with "Pomegranate Soup." But her father said it was at most 30 percent finished.

"I can just see from the documents that she had been sick," he said a day after opening the files. "She started something but could not continue. "

It hurt to read.

"I was crying, crying so much," he said.

He wondered if he missed important writings or clues to her death, if he should have fought harder for her emails instead. Now, everything was lost in the cloud. Or it never existed.


Your digital will

A userís guide to how different Internet companies treat our digital data when we die:

Google: First to create an "Inactive Account Manager" tool to choose who should have access to emails, photos, documents, YouTube videos and other information when you die, and whether you want your account to be deleted. If you donít take action, family members will typically need a court order to access your files.

Facebook: Users can choose if they want their account memorialized (setting up a permanent or temporary online memorial) or permanently deleted from the social network after they die.

Yahoo: Deletes inactive accounts and will not disclose a userís files upon death, citing the privacy terms each user agrees to before signing up for account.

Microsoft: Deletes inactive Outlook/Hotmail accounts; discloses some data to heirs upon request or court order.

Twitter: Deletes account upon request if a user is known to be dead; does not provide anyone else access to account.



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