Because of internet privacy laws, it is difficult and often impossible to access the “digital assets” of dead family members. Currently, the fate of those assets depends entirely on the companies' terms of service agreements.
Karen Williams, whose son Loren died in a 2005 motorcycle crash at age 22, had contacted Facebook in order to keep his digital property—photos, messages, comments and posts—from being deleted. She was able to figure out the password to the account; however, the site administrators changed it in adherence to Internet privacy regulations. The account was eventually taken down.
In Virginia, 15-year-old Eric Rash killed himself with a shotgun without any indication of suicidal tendencies. His parents sought access to his Facebook account for answers, but Facebook refused to let them in based on privacy laws. Over a year after Eric's death, Ricky and Diane Rash’s efforts have resulted in the Virginia state legislature passing a law allowing parents of deceased minors to access social media accounts.
William's and Rash's emotional legal battles have taken on a national momentum. In both cases, federal laws had not caught up to social media technology. The Uniform Law Commission (ULC), a non-profit and non-partisan group that helps to standardize laws around the nation, created the Committee for Fiduciary Access to Digital Assets to examine the case. Suzanne Brown Walsh, chair of the Committee, said that the goal is to "fill the gap in the existing state probate laws, only five of which currently address the topic of digital assets at all."
Six states have already crafted legislation dealing with digital asset management, and several more have begun drafting bills. Google has hired a lobbyist to oppose such legislation, noting that their business model depends on users' trust and privacy guarantees.
In 2011, the security-software company McAfee surveyed 3,000 people in 10 countries, asking them to ballpark the financial value of their online assets. The U.S. average was just under $55,000. Digital assets include music, videos, photos, licensed software, gaming accounts, and domain registration accounts. Twitter handles, email accounts, blogs, and other social media accounts provide immeasurable emotional and personal value as well.
This new market for digital afterlife services has given rise to companies such as SecureSafe, AssetLock, and Legacy Locker. These services act as online safe deposit boxes by offering storage for passwords and other digital assets to be given to a beneficiary in the event of the owner’s death.
"People do not like to talk or think or act upon their potential mortality,” said Jeremy Toeman, co-founder of Legacy Locker. “A product that makes you plan for your own death is always a challenging one to convince people to go use.” According to Forbes, over half of Americans do not have a will.
Current Facebook policy states that postmortem accounts can be memorialized for public view. A Facebook representative told Mashable that it "honors requests from close family to deactivate the account."
Twitter's website says the company will "work with a person authorized to act on behalf of the estate or with a verified immediate family member of the deceased to have an account deactivated."
Google launched a program in April called “Inactive Account Manager,” where you can dictate what happens to your account when you become inactive after a chosen period of time. In the event of your death, any named account beneficiaries can access photographs, videos, documents, or other data left to them.
The Stored Communications Act, a 1986 federal law, prohibits companies from sharing individuals' information, even if it was included in a will. Under the present law, Internet companies storing digital assets are barred from disclosing account information without a court order. Even then, some companies like Facebook will share the information only if they "have a good faith belief that the law requires us to do so."
In the absence of a clear law, estate managers are technically committing cybercrime when accessing clients' digital accounts. An attempt to update the Communications Act failed in the House Judiciary Committee last year. Currently Congress has no plans to address the issue of access to digital property and estate laws.
Until federal law catches up to social media technology, the Stored Communications Act and company-specific privacy agreements will continue to prevent family members from accessing the property of the digital deceased.
"We all inevitably see people in our lives pass, and see those digital remnants, those Facebook ghosts emerge, and hopefully that will get people thinking about how to avoid that for themselves," Toeman said.
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