iPhone To OurPhone: Apple Update Allows Users To Create A “Legacy Contact”

December 23, 2021 | Wendy Hoey Sheinberg | Michael C. Cannata | Frank M. Misiti | Trusts & Estates | Intellectual Property

Today, much of our lives are documented through digital devices and assets, instead of, for example, through things such as traditional family photo albums.  But while photo albums are easily passed on after death, passing along digital assets present additional challenges.  Expectedly, there are laws which address the ownership of digital assets.  That said, despite the existence of these laws, family members continue to experience difficulty accessing their deceased loved one’s digital accounts.

Apple, and other technology companies, are beginning to address those difficulties.  Apple now allows its users to designate a “legacy contact” who can request access to the decedent’s account and remove the activation lock on the deceased’s devices.  Notably, other technology companies provide similar functionality.  For example, Facebook also provides for the identification of a legacy contact, Instagram allows an account to be memorialized, and Twitter provides a mechanism for the deactivation or removal of an account of a deceased or incapacitated person.

As it relates to Apple, legacy contacts are available with iOS 15.2, iPadOS 15.2, and macOS 12.1.  Once your devices’ operating system is updated, and two-factor authentication is enabled, you can designate legacy contacts from your device by: (1) accessing “Settings” and clicking your name (if on a Mac, choose Apple menu and “System Preferences”); (2) clicking the “Password & Security” button and, thereafter, the “Legacy Contact” button; and (3) clicking the “Add Legacy Contact” button.  Your device will ask you to authenticate your identity, allow you to choose a contact, and share an access key with that contact.  Thereafter, the legacy contact will be able to access your designated information provided they have the access key and your death certificate.

Going forward, information and data that a legacy contact may access include, for example, photos, notes, mail, contacts, calendars, call histories, voice memos, and iCloud messages.  There are, however, limitations on the scope of information and data available to a legacy contact.  For example, legacy contacts cannot access licensed media (movies, music, etc.), in-app purchases (upgrades, subscriptions, etc.), and payment information.  The legacy contact can also download any data that it has access to and wants to keep.

There are, however, important issues that must be taken into account by a legacy contact prior to accessing, and using, a loved one’s information and data.  For example, there could be certain intellectual property protections associated with that information and data that may raise issues if used improperly by the legacy contact.  Take, for instance, photographs.  If the decedent took photographs which are stored on his or her device, absent an agreement to the contrary, it is likely that the decedent’s estate owns the copyrights associated with those photographs.  The fact that a legacy contact may have access to those photographs, without more, does not transfer ownership of those important copyright protections to the legacy contact and, thus, the legacy contact must take caution before using such photographs.

Likewise, there are also important issues that must be taken into account by an individual in selecting not only who serves as their legacy contact, but what information or data that individual has access to.  For example, in this day and age, substantial business is conducted through our electronic devices.  This may include the maintenance of highly-sensitive, trade-secret, information or data on our electronic devices.  Expectedly, in order to maintain such information or data as a protectable trade secret, it is critical that such trade secrets not be made available to third-parties without appropriate protections in place.  Accordingly, granting a legacy contact carte blanche access, for example, to all electronic mail or notes on a device may affect the ability to later claim that certain information or data contained in those e-mails or notes qualify as trade secrets.

At bottom, exciting new technologies often carry with them exciting new legal challenges which are best navigated through consultation with educated and experienced estate planning and intellectual property legal counsel.

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