The question has become a matter for the Uniform Law Commission, people selected by states to promote standardization of state laws, when possible. The commission endorses a plan to automatically give next-of-kin access to all digital accounts of a deceased person. They would not, however, have control of the accounts. An individual could specify through a will or other official document, which accounts he or she wished to die when they did.
State legislatures would have to adopt the commission’s recommendations to make them law. The provisions would be very helpful, the commission believes, in estate planning.
Those who back privacy are not supportive. They say people shouldn’t have to draft a specific will to protect private information, for instance a dating profile or emails that contain personal information that the writer would rather not share with an ex-spouse.
On the other hand, information relative to finances would be very helpful to grieving relatives. Some would value sentimental content. People often put very personal musings, photographs and videos into their computer accounts. Such things as a cooking blog or the comments of a gambling avatar or the every-day ramblings of noted celebrities could be valuable commodities after their passing.
In an Associated Press article on the topic, Ginger McCall, associate director of the Electronic Privacy Information Center, says that a judge’s approval should be requisite to delving into a deceased person’s digital assets. Such accounts today are the “filing cabinets” of the past, said an attorney who sits on the commission.
Some people assume that sharing certain passwords with those they trust is sufficient to guarantee access in the event of death. They could even make the passwords available to someone they trust through the terms of a will. But wills become public property. Also, anti-hacking laws and the “terms of service” applied by most companies prohibit anyone from accessing someone else’s accounts. Loved ones innocently trying to follow the guidelines of a will could find themselves accused of criminal activity.
Some tech providers have addressed the issue. Facebook will “memorialize” accounts, allowing confirmed friends of a client to continue to view photos and old posts. Google, YouTube and Picasa Web Albums have versions in which, if a client does not log on after a specified time, the account can be deleted or shared with a designated person. Yahoo users agree when they sign on that the account will expire when they do.
But court cases have made it clear that not everyone believes that the technology supplier should have the final word. The survivors of a Marine killed in Iraq sued Yahoo for access to his emails and won. A mother whose son was killed in an accident likewise sued and was eventually given access to her son’s Facebook account. (She complained that the communications had been edited.)
The commission’s proposed law would supersede a provider’s terms of service agreement. But other rules, such as copyright or licensing agreements, would remain intact.
Sticky issues, certainly, but obviously germane in a day in which everything we think and feel is likely to end up on the computer. Almost certainly, clarification is coming in the way of new laws and more oversight.