Some state laws allow an appointed executor to counter your express wishes about how your online accounts are handled when you die.
Many of the popular online services we enjoy allow us to choose what happens to our account when we die or include it in their terms of service.
For example, Facebook gives the option to “Memorialize” your account upon your death:
“When a user passes away, we memorialize their account to protect their privacy. Memorializing an account sets the account privacy so that only confirmed friends can see the timeline or locate it in search. Friends and family can leave posts in remembrance. Memorializing an account also prevents anyone from logging into the account.”
This seems like a sensible way to inform your friends about your passing, and to invite them to post thoughtful remembrances and photos. You might even want Facebook to give more options, like a predefined post with your last words and favorite photo. Or, setting a certain time for when your page is retired forever.
But your personal choices could be swept aside under state laws where a legally designated “executor” can override your account settings.
But all these innovative, personalized choices could be swept aside under state laws where a legally designated “executor” can override your memorialize settings.
Oklahoma already passed a law that allows an executor to ignore your agreement with an online account service, and New Jersey is set to follow Oklahoma’s example.
So this executor could continue to post comments as if you were still alive. Or they could shut your account down just as friends are trying to post their remembrances.
Even worse, the designated executor could access your private emails and statements you intended for only your “friends” to see.
There’s also the issue of compliance with federal privacy safeguards. Under the Electronic Communications Privacy Act (ECPA), social network operators could be required to seek legal verification for the rights of estate executors. And operators might also be subject to penalty should anyone abusing the process gain unauthorized access to an account.
Worst of all, these bills are an unnecessary interference with expectations previously arranged between you and your social networks and email services.
States should allow social network operators to respect the wishes of the dead.