Have you ever wondered what happens to your Facebook or online email account when you die? Should your heirs get control of your digital assets?
State lawmakers are now tackling these questions. This year alone, NetChoice testified in Maryland and New Hampshire.
Email services and social networks have default policies in place for handling accounts of deceased members. They are also experimenting with new ways to help users choose the fate of their accounts after they die.
For example, Facebook has a “memorialize” feature that respects a user’s privacy while letting friends and family post messages and memories. Hotmail allows next of kin to receive a DVD with the contents of the account. Some online services are attracting users because of their strong privacy protections and default data deletion policies.
So with all this innovation and choice, why do legislators think they still need to act? It’s likely they’re reacting to news coverage like the Wall Street Journal last week. And lawmakers reflexively believe we need new laws to handle new media.
Rather than looking to your will or the preferences and policies of your online service, these laws would allow a court-appointed executor to counter your express wishes about the management of your accounts after you’re gone.
But the new laws we’ve seen this year would cause more harm than good. Rather than looking to your will or the preferences and policies of your online service, these laws would allow a court-appointed executor to counter your express wishes about the management of your accounts after you’re gone.
And there are other serious questions that should be considered before passing new laws:
- Under what circumstances can the state authorize an executor to override privacy and data deletion choices made by the user?
- Should online services be required to retain emails and documents for a minimum period — despite the subscriber’s express wishes to delete their account upon death?
- When must estate representatives obtain court orders to force online services to retain or divulge documents and communications?
- When states empower a representative to take control of an account, will that cause online services to violate their obligation to prevent unauthorized access?
While state legislators ponder these questions, it’s imperative they remember that federal privacy laws, like the Electronic Communications Privacy Act (ECPA), prevent online services from sharing the contents of communications unless they have consent of the sender — an obligation that continues after death.
Clearly, more thought and safeguards for the privacy of email and social media users are needed before enacting legislation.
Grieving a loved one is painful, so online services should help users prepare and make this process easier. But it’s essential that we respect the privacy preferences that our loved ones have left behind.
