Death and Social Media: Don’t Strip Delaware Citizens of their Privacy

bill awaiting Governor Markell’s signature would override your privacy choices about what happens to your online accounts when you die.

Lawmakers across the country are increasingly confronting the question of what happens to Americans’ digital lives when they die. It’s a question worth careful consideration. Unfortunately for Delaware internet users, lawmakers in Dover have reached the wrong answer.

The Delaware legislation forces your email providers and online services to expose our personal communications when we die.  For many of us this is no big deal.  But consider the personal, sensitive, and confidential communications of spouses, doctors, psychiatrists, or addiction counselors.  This bill could force an online service to hand over these communications to a court-designated representative of your estate.

If today a user expressly chooses to have all their digital accounts deleted upon death or delivered to someone other than the legal representative, the Delaware bill says “too bad.” 

By default, the bill reduces Delaware citizens’ privacy to zero when they die.  It even revokes express privacy choices you made while alive.  If today a user expressly chooses to have all their digital accounts deleted upon death or delivered to someone other than the legal representative, the Delaware bill says “too bad.”

Beyond the privacy concerns, the bill disregards terms-of-service agreements, overriding contracts already protected by Delaware law.  This sets a dangerous precedent for Delaware businesses that want their contact terms to be enforced by other states.  If Delaware does not respect contract provisions, why should Maryland or Virginia respect the contracts of Delaware businesses?

Moreover, this bill would force email and online providers to choose between violating Delaware law and risking violating federal law that requires consent before disclosing the contents of electronic communications.

The good news is that online businesses are addressing this issue and designing tools for users to control what happens to their digital accounts when they die. For example, Facebook’s “Memorialize” feature respects users’ privacy wishes while also letting their friends and family post messages and memories.  And Google enables users to choose if they want their account transferred or deleted after inactivity.

Delaware must avoid setting a dangerous legal precedent for overriding contract terms and allow the online industry to have its users control their own privacy – not the state or an estate attorney.

Unfortunately, the Delaware legislature has passed a flawed bill that fails to protect the privacy of residents. It now falls to Governor Markell to respect the privacy of Delaware residents and veto HB 345.

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  1. […] Subsequent to FADA’s adoption, Delaware became the first state to enact the model legislation. As Delaware considered passage, NetChoice, an eCommerce trade group that counts Google, Yahoo and AOL as members, unsuccessfully urged the Delaware governor to reject the legislation. NetChoice also posted a blog entry — Death and Social Media: Don’t Strip Delaware Citizens of their Privacy. […]

  2. […] this week Yahoo pushed back hard against a recently passed Delaware law that requires Internet companies to turn over users’ emails to estate attorneys – even when […]

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