States are passing laws to make it easier to obtain digital data from Facebook, Yahoo and other password-protected accounts when someone dies. Tech companies, however, have been slow to support such laws and are now actively pushing back against them.
This week, Yahoo claimed that a model law fails to protect sensitive data like photos and messages, and that allowing heirs to access accounts fails to respect the wishes of dead users.
In a blog post, senior lawyer Bill Ashworth wrote:
In order to protect our users’ privacy, we honor the initial agreement that a user made with us […] We believe that account holders and individuals—not legislators—should determine what happens to a person’s digital archives at the time of their death. When it comes to a person’s digital archive, our team will continue to argue in favor of a user’s right to privacy.
The object of Yahoo’s criticism is a draft digital death law from the Uniform Law Commission. States can use the draft as a template to add rules to their inheritance laws in order to make it easier for executors to access the online accounts where important contracts or other information may be located. Delaware has already passed such a law, and a dozen states are expected to follow suit in the coming year.
So what is Yahoo upset about? Is it fair for the company to claim, as it does in the blog post, that “the ULC model sets the privacy default at zero?” Hardly.
As I reported earlier, the law wasn’t slapped together by a group of numbskull bureaucrats. It’s the careful work of a national group of lawyers and addresses the real problem that, these days, a range of assets and artifacts — from photos to bank information to bitcoins — lie on the other side of a password-protected gate controlled by tech companies. And the law, as written, doesn’t allow just anyone to demand that Facebook or Yahoo (or whoever) hand over a deceased user’s account. Instead, it involves a verification process that is intended to allow authorized agents to gain access for a limited period of time.
The real reason that Yahoo is upset about the law is probably not privacy. Instead, the company may dislike the fact that the law forces tech companies to act as intermediaries between dead users and their family members. Such responsibility is not just awkward, but will also entail the companies to expend resources dealing with the requests — instead of just relying on user agreements to say “no,” which is what they do now.
In the blog post, Yahoo says it prefers that its users determine what happens to their archives after they die. And indeed, Google has already created an “inactive account manager” tool to help them do just that.
But while such self-serve tools are a good idea, few people are now using them. More importantly, tech companies like Yahoo have little reason to claim that state laws should treat digital goods any differently than the physical photo albums and bankers boxes that people have always left behind.