What Does The Law Say About Obtaining Access To A Dead Family Member’s Facebook Profile?

Contributors Funeral Industry News Ryan Thogmartin Social Media February 18, 2013
Ryan Thogmartin

Ryan Thogmartin is the Founder and CEO of DISRUPT Media, a Funeral Home Marketing Company specializing in social media. Ryan is also a deathcare entrepreneur who has launched; DeathCareJobs.com, PriceMyFuneral.com and Funeral Nation TV.

What Does The Law Say About Obtaining Access To A Dead Family Member’s Facebook Profile?

What Does The Law Say About Obtaining Access To A Dead Family Member’s Facebook Profile?

What if the bereaved feel entitled to a deeper closure, specifically, by seeking answers from or access to a dead family member’s Facebook profile? The short answer: Their chances aren’t good.

Families like the Stassens have entered legal battles with major companies like Facebook and Google in an attempt to gain access to the digital assets of dead loves ones. As heirs of their son’s estate, the parents of Benjamin Stassen feel they have a right to access his Facebook account, to search for clues as to why their son suddenly chose to commit suicide.

In the U.S., property rights vary wildly across the country’s 50 states and territories, and are largely dependent on a person’s location of residency. These laws cover the scope of many types of property: real property (e.g., real estate and housing), personal property (e.g. automobiles, tools, clothing) and intangible property — in other words, “things that have value and can be transferred from one person to another, but has no physical substance, like IP rights,” says David Ervin, intellectual property attorney and partner at the law firm Kelley Drye.

To complicate matters further, state-determined property rights can quickly enter a gray area when a resident has entered into a contract with another person or company. In this case, Facebook’s terms of service can impact an individual’s legal right to transfer web property, even after death.

Facebook defines user property in two ways: account access and content posted from one’s account.

“Users own the content they post on Facebook, and users cannot assign their Facebook account without Facebook’s approval,” says Ervin, referencing Facebook’s TOS (addressed sections below). “Basically, Facebook owns their service and determines who gets to establish accounts and have access to the service, while users are allowed to control and own the content and information they post.”

Section 4. Registration and Account Security

Facebook users provide their real names and information, and we need your help to keep it that way. Here are some commitments you make to us relating to registering and maintaining the security of your account:

9. You will not transfer your account (including any Page or application you administer) to anyone without first getting our written permission.

What, if any, of this access and content is permissible to outside individuals after the original user’s death?

Facebook maintains the right to transfer account ownership; it’s plausible this could apply to a dead user’s account. But the TOS is silent on this issue, says Ervin, instead substituting access to such accounts with options like memorialization or deactivation, reserved for next of kin.

“Memorialization exists primarily to support Facebook’s authenticity policies,” says Facebook spokesman Noyes. “Profiles are restricted to real, live human beings and the profiles are memorialized when someone dies because continued operation of the account would be inauthentic.”

Section 2. Sharing Your Content and Information

You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition:

1. For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

If access falls under scrupulous Facebook privacy restrictions, what about content, which is highly personal and oftentimes of a creative nature?

It’s difficult to subsume all the different types of user-submitted content on Facebook. The range of what users post is highly subjective, and oftentimes, wasn’t even ours in the first place — remember that web comic from your favorite blog you posted last week?

This is where copyright factors in, hugely. Only protectable, tangible property can be considered a part of a user’s estate and, therefore, accessible by his or her descendants, says Ervin.

“Not everything that someone posts to their Facebook account is protectable,” he adds. “Copyright law protects original expressions that are fixed in a tangible medium. This covers things like photographs, music, art, written articles and drawings. Short comments or status updates on Facebook would not likely meet the requirements of copyright protection and would, therefore, not likely be subject to protection as intangible property.”

The combination of unprotected content, account and access ownership, and inconsistent state’s rights makes the transfer of Facebook property after death a near-unapproachable beast.

“I’m not convinced that social media networking service accounts (and the access rights that are granted to the accounts under a written contract) are intangible property, or that the service provider’s terms of service can be undone by state property law alone,” says Ervin.

That’s why organizations like the Uniform Law Commission, comprised of licensed lawyers, draft legislation like the Fiduciary Access to Digital Assets Act, with the hopes of determining whether such digital assets should fall into the hands of executors, given privacy concerns and the potential access to sensitive data and information.

It’s a complicated question on many people’s minds — not just lawyers’.

Source: Mashable.com