Preserving Online Accounts After Death
By Jenni Bergal, Stateline.org | |
McClatchy-Tribune Information Services |
Even though she was executor of his will, his widow was stunned to learn that in her state -- as in many others -- she had no legal right to access his online accounts.
"This caused a lot of emotional wear and tear on my mother. The whole situation was extremely traumatic, and this was just one more thing she had to deal with," said Johnson, 43, who is executive director of the
Johnson eventually reached out to a state legislator she knew, and last month, the
If the bill is signed into law,
The laws run the gamut from requiring Internet providers to give an executor access to all contents of a dead person's email to granting the personal representative of someone who dies the power to terminate his social media accounts. At least 10 other states considered digital assets legislation this year.
"This is one of those issues where the law has not kept up with these new technologies and accounts that have been created," said
While a growing number of states are passing digital estate laws, many in the tech industry have been fighting back, citing concerns about privacy and liability.
"Restoring Control"
Lobbyists for some of the nation's largest tech companies tried to kill the
Guardians of people who become incapacitated also could gain access to digital assets, but they would need a court order.
If the
"We put in provisions that prohibit the tech companies from making the choice for you. They can't, in their service agreement, say that upon your death, we're going to delete your account," said Democratic state Rep.
But some in the technology industry warn that the model law and the
"What happens to digital accounts when you die is an issue of great concern to our members because they are the custodians. They are concerned about creating a safe and secure environment for our users," said
Liability Concerns
Online providers also worry about liability, especially if an email contains information about a third party.
"If somebody died who's a drug counselor or psychiatrist or doctor, they're likely to have a lot of stuff in their email from patients, which is quite confidential," said
Orzeske, of the
"If the executor of a doctor's estate needed to get into his office and shred files or give them to the doctor's business partner, they'd have to get into his office, and they'd have access to confidential records," Orzeske said. "If the building custodian lets them into the office, he isn't the one who is liable. The fiduciary is."
The tech industry also argues that this type of legislation is in direct conflict with the 1986 federal Electronic Communications Privacy Act, which prohibits custodians of digital assets from releasing them to a third party without the sender's or receiver's permission or a court order.
"Not only is it a privacy issue, but the federal law prohibits us from disclosing that information without consent. The act of dying is not equal to consent," Szabo said. "We're not only liable to the sender and recipient but anyone harmed or grieved by that disclosure."
Szabo said that companies are being forced to decide which law to violate -- federal or state. In states that have enacted digital assets laws, his association's members have "let the terms of service dictate." He said Facebook has been "very reticent" to turn over contents of communications and private messages, and
His group does support
Szabo points out that Internet companies also have created tools to help users decide what happens to their digital accounts when they die. He cited Google's inactive account manager and Facebook's feature that "memorializes" an account and allows friends to post remembrances while the user's privacy settings remain.
Some privacy groups also have qualms about digital assets laws.
"People live with personal information that they do not wish to share with, say, their parents or their significant others," said
Digital Access Laws
A number of states already have tackled the issue of digital estates.
In
In
"So much of our lives are now on the Internet. Correspondence is done digitally through social media, pictures, emails," said Republican state
"We're not trying to 'get' a company," Peacock said. "We're trying to make it easier for the family to gain access."
Democratic Del.
"Back when I was a kid, everything that was mine could be stored under a bed or in a drawer. With my kids, everything they have is online," said Bulova, the father of three children. "If something was to happen to them, I'd want to know what happened. The idea that I would lose access to so many memories that were stored digitally just didn't seem right."
Estate Planning Key
Ultimately, both supporters and opponents of the
In the meantime,
Johnson said that her father, an accountant, handled most of the couple's financial transactions. He paid bills, banked and invested online. He booked vacations online. And he kept treasured family photographs in an online photo repository.
She said that her mother had no idea that her car insurance had lapsed because she didn't have access to the alert that had popped up in his email, which the Internet provider shut down after his death. Nor could she get access to his online photo album because that account was closed.
Because of all the challenges her family faced, Johnson said she ended up drafting her own will and making sure that her passwords and log-ins were included so that survivors wouldn't have to go through the same ordeal.
"The bill our legislature passed won't fix everything, but hopefully, it will bring this issue into the forefront," Johnson said. "People need to think about their digital assets when they prepare their estates. Hopefully, we can get them talking about it and planning ahead of time."
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