Accessing the Modern-Day Photo Album (The iPhone) After A Loved One’s Death

Some people might remember their parents fireproof boxes, stored under the bed, full of negatives of the family photographs that they couldn’t risk losing. Today, this practice is obsolete. In the era of digital photography, where your iPhone takes better photos than advanced digital cameras did even 5 years ago, how can you make sure that your digital photographs are passed down to your family? If you store your digital photos in iCloud, do you know what happens to your photos once you have passed away?

Apple, has famously flaunted its privacy and security measures, Recently, the company demanded that Peggy Bush, a 72-year-old widow, procure a court order to unlock her late husband’s Apple ID. Just last year, Leonardo Fabbretti spent months pleading with Apple to allow him access to his deceased son’s photos, which were stored on his iPhone, but not in iCloud. His battle concluded with Apple telling him that it was impossible to unlock his deceased son’s iPhone.

Unlike Google and Facebook, which have somewhat effective mechanisms for handling your digital assets upon your death, Apple does not currently have any built-in way for users to plan what happens to their accounts after they die. In addition, they have no definitive and official policy on such issues as of the date of this writing.

The common-sense solution to this problem seems to be to share your passwords with family members of friends that you trust. However, the iCloud terms and conditions prevent effective transfer of your photos, maintaining that you forfeit all rights to your account when you die. While it might be legal for you to share your password with someone else–the iCloud terms and conditions seem to equivocate on this issue–it is almost certainly unlawful for that person to subsequently use that password to access your data. In sharing your password with you family members to use upon your death, you may be setting them up for a federal crime in violation of the Computer Fraud and Abuse Act.

Many people take it upon themselves to contact Apple after the death of a love one to access their accounts. Many are successful in accessing their loved one’s digital assets if they can show proof of death and a family relationship; but many are not so lucky.

In light of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which was enacted into law in Colorado last year, it’s very likely that Apple’s will soon discontinue providing access to digital assets upon the deaths of their users in more and more circumstances.

The importance of one’s photographs tends to increase with age while; unfortunately, age also seems to bring with it a certain decrease in technological know-how. Steps to mitigate the risk of losing your cherished memories must be taken sooner rather than later. These steps must also be taken outside the confines of Apple products and services.

An attorney can help you to navigate the murky waters of the seldom-reviewed Apple terms and conditions, which present legal barriers to the solutions which seem most obvious. A digital estate plan prepared by a licensed attorney will help you and your family by itemizing your digital assets, some of which your family may not know about, and also by providing the appropriate parties with access to those assets.