A proposed law might determine what happens to our online accounts when we die. But the tech industry warns the measure could threaten the privacy of the deceased.
Ancient peoples sent their dead to the grave with their prized possessions — precious stones, gilded weapons and terracotta armies. But unlike these treasures, our digital property won’t get buried with us. Our archived Facebook messages, old email chains and even Tinder exchanges will hover untouched in the online cloud when we die.
Or maybe not.
Last week, the Uniform Law Commission drafted the Uniform Fiduciary Access to Digital Assets Act, a model law that would let relatives access the social media accounts of the deceased. A national lawyers’ group, the ULC aims to standardize law across the country by recommending legislation for states to adopt, particularly when it comes to timely, fast-evolving issues.
And little evolves more quickly than the Web.
As we live more and more of our lives online, more and more of what used to be tangible turns digital.
“Where you used to have a shoebox full of family photos, now those photos are often posted to a website,” notes Ben Orzeske, legislative counsel at the ULC.
That shoebox used to go to the executor of the deceased’s will, who would open it and distribute its contents to family members. The will’s author could decide what she wanted to give and to whom. The Uniform Fiduciary Access to Digital Assets Act aims to make the digital shoebox equally accessible.
“This is the concept of ‘media neutrality,’ ” Orzeske explained. “The law gives the executor of your estate access to digital assets in the same way he had access to your tangible assets in the old world. It doesn’t matter if they’re on paper or on a website.”
It turns out those terms-of-service agreements Internet users usually click through without reading include some strict rules: The small print on sites like Facebook and Google specifies that the user alone can access his or her account. But the ULC’s proposed law would override those contracts, Orzeske said.
The law’s proponents say this change would solve a host of problems.
For one thing, it would allow the executor and family members to clear up any unresolved financial matters in the wake of a death.
“An executor could go find estate assets like online bank accounts through email,” Orzeske said.
But the law could also have more sentimental implications.
Though Facebook switches dead users’ profiles to memorial status if a decedent’s family asks, the site does not allow family members to log onto a loved one’s page without a formal request. And sometimes, these petitions are turned down.
That’s happened to many grieving relatives, from Virginia farmer Ricky Rash to Jay and Helen Stassen of Minnesota. Both families lost their sons to suicide — and both were frustrated in their attempts to find answers through their child’s Facebook account.
ULC lawmakers hope their efforts will fix this problem, allowing families to handle online accounts just as they would photographs or diaries.
But Facebook — and companies like it — see another side to the issue. Where the ULC’s policy might seem only to help, Jim Halpert, head of the privacy practice at DLA Piper U.S., thinks it could hurt.
Halpert, who represents social media and communications companies like Facebook, Google and Yahoo, explained that the proposal does more than offer distressed families closure — too much more.
“The bill takes no account of minimizing intrusions into the privacy of third parties who communicated with the deceased,” Halpert said in an email statement. “This would include highly confidential communications from third parties who are still alive — doctors, psychiatrists, and clergy, for example.”
Carl Szabo, policy counsel for the NetChoice eCommerce trade association — whose members include AOL, Yahoo, Facebook and Google — says the ULC law would also threaten the privacy of the deceased.
“It sets the default privacy to zero,” Szabo said. “Unless the user makes an affirmative choice, by nature everything is disclosed.”
For someone unfamiliar with the law, then, what seemed private in life may turn public after death.
So is there a middle ground?
Some companies are working on it.
Yahoo Japan’s Yahoo Ending lets the deceased choose — before death, of course. The new platform allows the living user to craft farewell emails, prepare cancellations of subscription services, and choose certain photos and videos for postmortem deletion.
Sites in the United States are trying, too.
“Google has a tool on their dashboard called the inactive account manager,” Orzeske said. “It allows you to hit a switch and choose to have your emails deleted, preserved or handed over to someone if your account is inactive for some amount of time.”
This protects privacy even in death, letting a user choose to keep confidential communications confidential.
“It serves the exact same purpose as making a will,” Orzeske said.
But Szabo says the ULC act trumps the user’s wishes the moment the state in which he or she resides enacts the law.
“The day the state passes the uniform act, all your privacy choices are overridden,” he said.
As states decide whether to make the ULC’s vision a reality, companies will search for ways to let their clients know which gates will open after death and which will remain closed.
In the meantime, a Facebook profile remains shrouded in just as much mystery as King Tut’s tomb.