Digital Life and Death
Recently, PBS’s Newshour ran a story, “What Happens to Our Digital Lives When We Die?” The story discussed the inability of a decedents’ next of kin, in most states, to access digital content after the account holder’s death. This means that photos, emails, social media posts, etc. may be lost to the parents, spouses, and children of the deceased. In addition to the loss of mementos, it is often unclear what happens to an individual’s digital assets upon death. Currently, there are five states that have laws that deal with digital assets: Connecticut, Indiana, Idaho, Oklahoma, and Rhode Island.* Just recently, the Virginia assembly has passed a bill on digital assets.
- Connecticut: 45A C.G.S.A. §45a-334a. Access to decedent’s electronic mail account
- Indiana: Ind.Code §29-1-13-1.1. Electronically stored documents or information; custodians; providing access or copies to personal representative
- Idaho: Idaho Code §15-5-424. Powers of conservator in administration
- Oklahoma: 58 Okl. Stat. Ann. §269 et seq. Executor or administrator — Powers
- Rhode Island: Gen.Laws 1956, §33-27-1 et seq. General Title (Access to Decedents’ Electronic Mail Accounts Act).
- Virginia: House Bill 1584 (2013 Session) Fiduciary Access to Digital Assets
The Newshour told the story of a family whose 15-year-old son committed suicide. The family requested access to his Facebook site in the hope of understanding why he took his own life. Facebook denied the request. Facebook’s denial was based on the user’s right to privacy. In a similar case, In re Facebook, 2012 WL 7071331 (2012) the court quashed a civil subpoena to compel Facebook to produce the records of a deceased person. The court based its decision on the language of the Stored Communication Act, Title II of the Electronic Communications Privacy Act P.L. 99-508, 100 Stat. 1848, 1860 (1986), which protects a person’s online data.**
Law reviews, articles, blog posts, and sites on this issue:
- Kristina Sherry, What Happens to Our Facebook Accounts When We Die?: Probate Versus Policy and the Fate of Social-Media Assets Postmortem, 40 Pepperdine Law Review 185 (2012)
- Noam Kutler, Protecting Your Online You: A New Approach to Handling Your Online Persona After Death, 26 Berkeley Technology Law Journal 1641 (2011).
- David M Lenz, Death and Downloads: the Evolving Law of Fiduciary Access to Digital Assets, 23 (1) Ohio Probate law Journal (NL) 2 (Sep./Oct. 2012)
- Charles Doyle, Privacy: An Overview of the Electronic Communications Privacy Act (CRS Report, October 9, 2012)
- Estate Planning for Online Accounts Becoming Essential, Digital Assets (Part I & Part II)
- Erica Swallow, 7 Resources for Handling Digital Life After Death, Mashable (looks at services for dealing with digital assets after death).
- The Stored Communication Act And Facebook After Death, it-lex
- Digital Estate Resource (A site about digital assets and estate planning)
- the digital beyond (A blog about digital existence after death)
* Hat tip to Digital Estate Resource.
** Hat tip to The Stored Communication Act And Facebook After Death, it-lex