As our lives incorporate technology more and more, digital estate planning is becoming an increasingly common discussion to have with loved ones. And Facebook is hoping to make that transition a little easier with their new Facebook legacy feature.
The new setting will allow users to decide if they want their profile deleted when they die, or allow them to choose a friend or family member to control some aspects of their account after their death. That person could turn the page into a memorial of their life, download an archive of photos and posts, and more.
It’s not the first time that Facebook has changed their policy regarding their post-mortem handling of accounts; they previously revised their stance after their “look back” videos caused some problems amongst those with Facebook friends who had passed away. That change in policy, said Sara Jodka of Technology Law Source, sparked a new conversation of its own:
Not surprisingly, the policy change has elicited varied reactions including whether social media sites should be responsible for profile settings or if legislation is needed to regulate digital assets. As noted in our earlier post, only a handful of states have laws governing digital assets, and federal legislation focusing on the issue is in the very early stages.
With more and more people storing significant portions of their lives online, we can expect see more proposed legislation on this issue — especially considering the ongoing conversation around the need to modernize probate and estate laws to take into account digital assets.
While legislation moves slowly throughout the country, users are often advised to discuss passwords and protocols before it’s too late. There have even been smartphone apps that maintain your accounts and passwords to pass along to your executors upon death.
And those assets aren’t just social media passwords. The Pew Research Center once featured a study stating that the average online user has 25 online accounts, from social media to email to banking. Those who mine or own Bitcoins or one of the other digital currencies might not have the option to leave it any beneficiaries when they die, given that there’s not any legal framework for them to call upon. A Hawaii News Now article reports:
“Tens of thousands of dollars that is now lost. You’ve bought this Bitcoin currency, you had it to do internet currency and purchases and other exchanges and all of the sudden they die. What’s the difference between that and a bank account?” said State Representative Angus McKelvey, (D) House Consumer Protection and Commerce Committee Chair.
State Representative Angus McKelvey plans to introduce legislation that would cover digital assets, not just the currency, but also give family access to apps, photos, files, music, ebooks, even email and social media accounts.
“It’s becoming a really big issue and it’s becoming more and more everyday as you have this electronic virtual economy that’s developing,” said Rep. McKelvey.
“It’s completely the wild west right now. There is no real knowing how that is going to be handled. There are certainly no laws because it has no national origin. I think we’re still trying to figure that out,” said Ryan Ozawa, Hawaii Information Service.
In an interview with LXBN TV, Gregory Herman-Giddens says there’s been 17-18 states that have dealt with it in someway. The handful of states that do allow for some sort of post-death curation (Connecticut, Rhode Island, Idaho, Oklahoma, Indiana, Nevada and Virginia, if you were wondering) often only address specific aspects of digital estate planning, like shutting down an account or email service providers specifically.
These laws are further limited by what sort of agreements the user entered into when they signed up. Those pesky terms of agreements can often lead to conflicting protocol, says Tom Bolt of the Virgin Islands Law Blog:
One of the major challenges involved in protecting your digital assets after your death is all of those user agreements you’ve most likely clicked through and signed or accepted, often without reading. They actually place certain restrictions on your online content and records, including on how they may be used or accessed, and by whom. When these user agreements turn out to contradict federal or territorial laws, the process of dealing with your digital assets can quickly become quite complicated.
For now the best users can do is to provide their loved ones with a way of accessing all their accounts. But the number of older online users is growing, already up nine percent from last year, which was ten percent higher than the year before, and pretty soon there might need to be some clearer rules around who calls the digital shots when we’re gone.
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