Facebook After Death: What Should the Law Say?
When you die, your social media presence lives on. But should it? Lawmakers and lawyers are tackling the question of what should happen to your digital life after death.
The Uniform Law Commission recently approved a study committee on fiduciary power and authority to access digital property and online accounts during incapacity and after death. Uniform laws are created when there is little current legislation for states to follow.
Gene Hennig, one of Minnesota’s commissioners on uniform state laws, offered the proposal. “Fiduciaries need clear powers to act on behalf of the individuals in the digital world” after death, he said.
He estimates the uniform law process will take three years or more and will let estates gain access to the dead person’s online property with ease — while also allowing you to have a say in how you want your digital assets to be handled after death.
“There is a crying need for a uniform law that would grant a unified way of addressing the issue throughout the country,” Hennig said.
Lawmakers have been slow to enact legislation related to digital property after death, and social media companies have relied on terms of service to guide them.
Former Oklahoma Rep. Ryan Kiesel was one of the first to realize the need for legislation. The dead are leaving behind valuable virtual property that needs tending to in the same way physical property is passed on, Kiesel said.
“People are living differently in 2012 in that a large part of their lives are shifting digital,” said Kiesel, the backer of Oklahoma’s digital property management after death law, which passed in November 2010.
“We have shifted away from letters in a shoe boxes to email messages and Facebook. There is a lot more traceable communication floating around.”
Laying Down the Law
Only five states — Oklahoma, Idaho, Rhode Island, Indiana and Connecticut — have created laws governing digital asset management after death.
In 2005, Connecticut was the first to establish a digital assets law. The statute is a little dusty — it references an “electronic mail account” and makes no reference to blogs, online bank accounts, payment accounts, photo sharing accounts or Facebook and other social accounts.
“I’m not sure if the existing state laws governing digital assets have been comprehensive enough,” Hennig said. “But I do think existing legislation is a good starting point for a more thorough look into fiduciary access to digital assets after death.”
Other states are crafting legislation now, and don’t want to wait three years or more for a uniform law. Michael Walker, an estate planning attorney, is on the Oregon State Bar virtual assets committee looking into developing a state law on the issue. And just last week, Nebraska Sen. John Wightman announced his sponsorship of a digital assets bill.
Nebraska’s law scrapes the surface of Internet account management and is similar to Oklahoma and Idaho’s laws. The bill proposes a dead person’s personal representative — appointed by the court or the heir to the estate — be granted access and control of digital accounts belonging to the dead person.
Service Providers Cling to Terms of Service
Facebook’s terms of service say it will not issue login and password information to family members of a person who has died. A family member can contact Facebook and request the dead person’s profile be taken down or turned into a memorial page.
If the family chooses a memorial page, the account can never again be logged into. But new laws change the way sites like Facebook are addressing digital life after death.
“Our existing policy works to ensure that privacy settings are preserved and respected. These policies extend to memorialized accounts,” said Tucker Bounds, a spokesman for Facebook. “We will provide the estate of the deceased with a download of the account’s data if prior consent is obtained from or decreed by the deceased, or mandated by law.”
Yahoo’s terms of service have been more strict than others. In 2005, a family asked Yahoo for login and password information for their son, Justin Ellsworth, a Marine who died in Iraq.
Yahoo refused to give login and password information, citing the company’s privacy standards. In the end, the court ordered Yahoo to release the email account login and password.
Gmail and Hotmail will mail the estate holder a CD with the decedent’s account information, after the beneficiary of the estate sends the required information.
The Future of Digital Dead
It’s hard to tell the impact of the five state laws on online property post-death since the laws have hardly been utilized. Kiesel said Oklahoma lawyers now ask a person desiring a will to include how he or she wants digital accounts to be taken care of after death.
The law has created a lot of chatter, but Kiesel hasn’t heard of anyone using the law to gain access to dead loved one’s digital accounts.
Walker said he and other estate planners in Oregon prepare a virtual asset instruction letter (VAIL) for a person to leave in his or her safety deposit box. The letter lists a person’s online account information to make the account more accessible after death. A person can also instruct the executor to delete all accounts without reading emails or other communication, Walker said.
Online services like Entrustet, Legacy Locker and My Webwill offer other options for passing on online account access after death.
But some lawmakers advise against using these services. Kiesel points out that a will including digital accounts is more secure than these sites, which may not exist when a person dies.
Check out the gallery for more services that provide tools for managing your digital life after death. And tell us in the comments: Do you have a plan? Do you think lawmakers should establish uniform methods for dealing with social accounts? If so, how?
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