Your Digital Legacy: States Grapple with Protecting Our Data After We Die

Who is allowed to read through your e-mails — or update your Facebook page — when you die? In many states across the U.S., there are no clear answers to such basic legal questions

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Who is allowed to read through your e-mails — or update your Facebook page — when you die? In many states across the U.S., there are no clear answers to such basic legal questions.

That’s why Cynthia Creem, along with numerous other policymakers nationwide, is fighting to bring clarity to the high-tech confusion. A Massachusetts state senator, Creem proposed a bill this year that would give executors access to e-mail accounts of the deceased. “You would certainly have access to somebody’s desk,” Creem says. “Why should this be any different?” Her bill would make Massachusetts the sixth state to put a “digital asset” law on the books. But tech companies are wary of new privacy-related legislation — and in this case, Google hired a lobbyist to oppose it.

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A question increasingly on the minds of lawyers, academics and legislators is how to deal with the ever expanding digital footprints we leave behind when we die. High-profile showdowns over online accounts have often pitted bereaved parents against industry behemoths armed with terms-of-service agreements, those novella-length contracts that everyone checks and no one reads. But now that baby boomers are moving online too, this probate problem will become much more widespread: by one estimate, 580,000 Facebook users will have died this year in the U.S. alone. Creem’s colleagues clearly share her concern: Massachusetts legislators unanimously passed her bill in the senate this June. Meanwhile, bar associations from Oregon to Nebraska are drafting their own measures outlining whether these e-things are bound.

What qualifies as a digital asset? “Anything that we store online, on our computers or in a cloud that might have value,” says George Washington University law professor Naomi Cahn. “It’s not just financial value. It’s also emotional, personal value.” That definition covers everything from domain names to Twitter handles, apps to frequent-flyer miles — or perhaps, to cite a favorite example of Cahn’s, the virtual sword used in video game Age of Wulin that sold at an auction for $16,000. “Everyone is basically moving their lives online,” says Marc Rotenberg, executive director of the Electronic Privacy Information Center. “And that includes a lot of personal things they might have kept in the file cabinet or in the box under their bed.” Last year, security-software company McAfee surveyed 3,000 people in 10 countries, asking about the financial value they’d assign to assets such as music files and online photo albums: the U.S. average was just under $55,000.

If after we die, our belongings and treasured mementos are under username and password instead of lock and key, executors may need legal rights to get and use those passwords. Virtual walls may guard the information that survivors need to manage the estate or the answers and closure they seek after losing a loved one. “These issues are coming up with parents trying to trace their children’s lives,” says Cahn, “whether it’s someone who has died in Iraq or whether it’s someone who has committed suicide.” But for companies like Google or Yahoo, which provide the platforms for these assets, their business model depends on users’ trust. Users expect them to defend their privacy with a broad sword, so the companies have fought to protect that privacy even after the users are gone. (Check out TIME’s nine tips for protecting your digital assets.)

Helen and Jay Stassen, a Wisconsin couple whose son committed suicide in 2010, served Google and Facebook with court orders after being denied access to their son’s accounts. “We are his parents, we are his sole heirs,” says Helen. “We are saying, ‘We own this.’ And that’s what this fight is.” Court orders like theirs help support that argument, but even then the process isn’t simple. Google quickly gave up the e-mails following the court order, but Facebook dragged the process out for months after being served last April. The Stassens say they were embroiled in negotiations and eventually agreed to sign a contract stating that they’ll never show the contents of the account to anyone outside the immediate family. “We have served them with a court order and they’re giving us negotiations?” Helen says. “People need to understand how difficult this is. There will be other parents in our situation. Or a spouse. Who knows?”

When a user dies, Facebook’s standard practice is to “memorialize” the page by restricting who can see it but still allowing friends to leave messages and grieve together. (The company will also close the account upon request.) The policy of Yahoo, whose mail service has some 300 million unique visits per month, states that survivors may request to have the account deactivated and the contents permanently deleted — but that’s it. LinkedIn says it would not grant access to a deceased member’s account unless legally required to do so. Other companies are more open to requests, but new networks and platforms arise all the time, and estate law, which is often very old, hasn’t caught up in providing broad guidelines for online industries.

Estate law also varies from state to state, and the statutes passed so far don’t agree on what needs to be made available. Creem’s bill applies only to e-mail, same as laws in Rhode Island and Connecticut, where the eldest statute was passed in 2005. Indiana’s covers electronic “documents” and “information.” In Idaho and Oklahoma, everything from microblogging to social networking is covered. Perhaps more important, legal experts aren’t sure how these young laws would fare if pitted against terms-of-service agreements in court. “The first big case on this issue will be a very interesting one,” says attorney Katie Zulkoski, whose firm is working on a digital-asset bill in Nebraska. “It’s really unclear, and someone will test it. I don’t know which side, but someone will.”

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Creem’s Massachusetts bill explicitly states that the law will supersede any provider contract. And Google didn’t lobby against that or any particular provision. The company doesn’t oppose giving survivors access but says it believes the issue can be addressed with technology — rather than, say, 50 different state laws. One way to limit confusion is for all state statutes to look the same. That’s the mission of the Uniform Law Commission, a nonprofit association that champions federalism by drafting and promoting state laws. The group “severely” expedited its study of digital assets this year, according to commissioner Suzanne Walsh. “It’s part of the legislative process to look at your laws, dust them off and see what needs to be updated,” she says, and with these bills proliferating, the time to standardize them is now or never. Still, at the very fastest, a uniform draft will not be ready for another year. In the meantime, some members of Congress are trying to make sure federal law stays out of the fray: California Republican Representative Darrell Issa just proposed a two-year moratorium on any Internet-related legislation.

Cahn and other legal minds have suggested another option that doesn’t involve legislation and that may be more palatable to the industry. That is to have the providers add a proactive step to the sign-up process. For instance: “Upon your incapacity or death, do you a) want no living soul to ever sift through your messages or b) want access given to the executor of your estate?” This could help the companies both adhere to internal privacy policies and account for a common criticism of digital-asset laws — that there’s a potential for prying relatives to see and learn things the deceased never intended.

Regardless of where you live or what your current state law mandates, lawyers suggest accounting for your digital assets — specifying what they are and whether anyone should be able to access them after you are gone. “It’s really important that the people who are trying to put the puzzle together when somebody passes have the ability to access that information,” says attorney Victoria Blachly, who is working on a digital-asset bill in Oregon. Creem, meanwhile, thinks of her own digital photo albums as her bill waits for action by the Massachusetts house of representatives. It’s unlikely that it will be passed during the state’s current informal session. But she says that if she needs to, she’ll submit the bill again, “all over again, with vigor.”

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