By Damien McCallig
Through the use of email, social media, and other online accounts, our lives and social interactions are increasingly mediated by digital service providers. As the volume of these interactions increases and displaces traditional forms of communication and commerce the question of what happens to those accounts, following the death of the user, takes on greater significance.
Should the relatives or heirs of a deceased Facebook user have the ‘right’ to access, take control of, or even delete the account? Some of you reading this will recoil in dread at such a thought, quickly remembering all of those digital indiscretions and private messages you would prefer to assign to oblivion but never got around to deleting. Other readers may remember a friend, no longer alive today, and will possibly turn to social media later to seek out a picture and recall a shared memory.
Of course while such personal and emotional interests play an important role in the emerging debate on how to handle the digital remains of deceased persons, other considerations, such as the possible economic value stored in accounts that ‘trade’ virtual property and currency or facilitate real world transactions, cannot be ignored. Neither should it be forgotten that, in time, access to these digital accounts will also be sought after by historians and researchers. Will these digital materials of history be locked behind passwords with access dependent on the goodwill of internet-based service providers?
Part of the answer to these questions is to be found in the terms of service (a legally binding contract) which most of us click ‘I agree to’, without ever reading. Many service providers have specific clauses or policies relating to the death of an account holder. For example, Google’s Inactive Account Manager permits subscribers of their services to make arrangements for the transfer, or deletion, of the data stored in their Google accounts following death. Unlike Google, no other major service provider gives users an in-service option of nominating heirs who can subsequently claim data from accounts. By signing up with Yahoo! you agree: “that your Yahoo! account is non-transferable and any rights to your Yahoo! ID or contents within your account terminate upon your death”.
Facebook ‘memorialize’ a deceased user’s account, which means the Facebook profile is frozen, limiting those who can see or locate it to confirmed ‘Facebook friends’ who can continue to share memories on the ‘memorialized’ timeline. Should a surviving family member wish to access the content in a Facebook account they must follow what Facebook describe as ‘a lengthy process’ which ultimately requires a court order.
However, common to all service providers is a policy not to hand-over a password for a decedent’s account. To overcome these blunt contractual and technical defaults, digital estate planning services have emerged. Despite the grand title, these are often no more than password sharing schemes. LegacyLocker.com and SecureSafe offer further services but ultimately depend on a user maintaining a list of accounts and associated passwords. API based services such as Perpetu are also emerging.
Of course a user may plan ahead and share their password with family and friends, while alive, or leave passwords in a will. Unfortunately sharing passwords and permitting others to use your account is very often prohibited by the terms of service agreement. Furthermore, accessing or modifying content in a deceased person’s account without the knowledge of the service provider may constitute a criminal offence in some jurisdictions.
Surviving families have also turned to the courts, but with mixed results. The Ellsworth family, whose son Justin was killed in Iraq in 2004, won a probate order against Yahoo! to obtain copies of the contents of an e-mail account. However, a UK family was refused an order, by a California court, to compel Facebook to provide the contents of their deceased daughter’s account, due to a US federal law enacted to protect privacy in electronic communications.
A number of US states (Connecticut, Idaho, Indiana, Nevada, Oklahoma, Rhode Island and Virginia) have laws incorporating certain online accounts or information into the probate process. However, little consistency exists in the scope of these laws or the powers they create. Furthermore, these state laws may be in conflict with US federal laws. In an attempt to address these matters, the Uniform Law Commission in the US are currently drafting a Uniform Fiduciary Access to Digital Assets Act.
Empowering users to make active choices in relation to their digital remains should be a fundamental element of any solution. However, the creation by legislators of a default position where digital remains are automatically transmissible at death, unless a valid will provides otherwise, may not be the best solution. Does each new account require an amendment to a will? Are children, who in many jurisdictions cannot create a valid will, to be denied post-mortem privacy in relation to their accounts?
A creative solution is required that provides for individual choice on whether these accounts and contents are to re-used, deleted or distributed, following death. However, reconciling the business needs of service providers with the sentimental and economic interests of surviving family and friends, and the public interests involved in future access to these materials of history, for heritage institutions and researchers, will not be easy.
The policy debate in relation to your digital legacy is only beginning.
Damien McCallig is a Ph.D. candidate at the School of Law, National University of Ireland, Galway and an Irish Research Council postgraduate scholar. This blog post introduces the topic of digital legacy. A deeper analysis of the legal and policy issues related to this topic can be found in Damien’s article ‘Facebook after death: an evolving policy in a social network’ in the International Journal of Law and Information Technology and available to read for free for a limited time. Follow Damien on Twitter.
Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.