Nebraska is Latest State to Address Digital Legacy

Nebraska is Latest State to Address Digital Legacy

Nebraska is the latest state to propose legislation to allow next of kin to control digital accounts after a user has passed away. Senator John Wightman is proposing Legistlative Bill 783 on behalf of the Nebraska Bar Association to clarify the rights of representatives of the deceased.

The proposed bill is modeled after Oklahoma’s digital property management after death law, that passed in 2010. The law states that “The executor or administrator of an estate shall have the poser, where otherwise authorized, to take control of, conduct, continue, or terminate any accounts of a deceased person on any social networking website, any microblogging or short message service website or any e-mail service websites.”

Idaho passed a similar law last year. Conneticut, Rhode Island, and Indiana have older legislation covering email and digital files.

The BBC told the story of a Nebraska woman who is affected by the remaining Facebook page of her sister. After 2-years, she has come to peace with the death of  Janna Moore Morin, but seeing her picture on Facebook each time they log in has become a constant reminder of her family’s loss.

“The only issue that we have now is that her picture’s always popping up and her picture’s always in your friends and after a while, it just gets to be enough. You get to the point where you’ve accepted things, and you want to see pictures when you want to see them, not just whenever they pop up. And so sometimes it’s almost a deterrent to going online or going on Facebook. One of my brothers…never even uses his account because he doesn’t like to be reminded every time he goes online.”

Currently, Facebook offers two options to deal with a deceased user’s account: you may request memorialization or request the account to be closed.

In the case of the Remember Janna Moore Morin page, her sister may feel differently than other members of her family about wanting the page removed. Janna’s father posts post messages of remembrance there frequently alongside posts from friends and family. This particular case may be another of a contrast in how people mourn online.

For those who do not want to be reminded of a departed one each time they log in to Facebook, there are options other than removing the page or personal profile that may be providing comfort to others.

Simply “unliking” a Facebook page will remove the updates from your news feed. However, the posts that your friends in common make may still appear in your news feed.

“Unfriending” will remove that person’s personal profile from your friends list. A word of caution, though: Unfriending a deceased person’s profile is permanent as there will be no way for a renewed friend request to be approved, so think carefully about this option.

However, to truly manage a deceased’s digital life after they’ve passed away, the legal representative needs the right to access accounts and files across the web. The next few years will see laws passed both in the United States and elsewhere to give executors and next-of-kin the teeth they need to carry out their loved ones’ wishes.

The forgotten assets: Protecting your client's digital assets at death

Template of an Authorization and Consent for Release of Electronically Stored Information


I, __________________________________________ , hereby authorize any person or entity that possesses, custodies, or controls any electronically stored information of mine or that provides to me an electronic communication service or remote computing service, whether public or private, to divulge to my then-acting fiduciaries at any time: (1) any electronically stored information of mine, (2) the contents of any communication that is in electronic storage by that service or that is carried or maintained on that service, and (3) any record or other information pertaining to me with respect to that service. The terms used in this authorization are to be construed as broadly as possible, and the term “fiduciaries” includes a guardian or conservator appointed for me, a trustee of my revocable trust, an Attorney in Fact under a valid Power of Attorney, and a Personal Representative (executor) of my estate.

This authorization is to be construed to be my lawful consent under the Electronic Communications Privacy Act of 1986 (which includes the Stored Communications Act), as amended, the Computer Fraud and Abuse Act of 1986, as amended, and any other applicable federal or state data privacy law or criminal law. This authorization is effective immediately. Unless this authorization is revoked by me in writing while I am competent, this authorization continues to be effective during any period that I am incapacitated and continues to be effective after my death.

Unless a person or entity has received actual notice that this authorization has been validly revoked by me, that person or entity receiving this authorization may act in reliance on the presumption that it is valid and unrevoked, and that person or entity is released and held harmless by me, my heirs, legal representatives, successors, and assigns from any loss suffered or liability incurred for acting according to this authorization. A person or entity may accept a copy or facsimile of this original authorization as though it were an original document.

Dated this_______ day of_________________________ , 20__