Digital remains: property or privacy?

Michael Birnhack*, Tal Morse

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review


How should the law treat digital remains, namely, digital personal information of deceased people? Two rival conceptions compete over the best framing: property and privacy. Under property framing, digital remains are just another form of assets, subject to succession law; under privacy framing, digital remains are personal data, and upon death, are not part of the estate. However, whether privacy rights survive death is contested. This article distinguishes between four legal categories of digital remains (intangible items, information about property, intellectual property and personal data), unpacks the two rival framings, and argues that the property framework captures the first three categories of digital remains, but not the last. The article examines the argument for posthumous privacy and concludes that at most, the law should protect reasonable expectations of the living regarding their post-mortem condition, subject to balancing them with competing interests and rights of the living.

Original languageEnglish
Pages (from-to)280-301
Number of pages22
JournalInternational Journal of Law and Information Technology
Issue number3
StatePublished - 2022


  • copyright
  • data protection
  • digital remains
  • platforms
  • posthumous privacy
  • property


Dive into the research topics of 'Digital remains: property or privacy?'. Together they form a unique fingerprint.

Cite this