#1 – States Want Your Privacy to Die with You

What’s so iAWFUL?

What happens to your online accounts, messages, and photos after you die? If you don’t give permission beforehand, would you want an estate manager to have access to everything? That’s exactly what estate attorneys are seeking with legislation in several states that would open up your online accounts after you die, whether you approved or not.

That not what Americans want: More than 70 percent of Americans think that their private online communications and photos should remain private after they die – unless they gave prior consent for others to access. In addition, 70 percent also felt that the law should err on the side of privacy when someone dies without documenting their preference about how to handle their private communications and photos.

(AR HB1362), (FL HB313/SB102), (IL SB1376), (IN SB368), (IA SB1238), (KY SB53), (MA HB1287), (MI HB4072), (MN HF200/SF476), (OR SB369), (TN HB774), (TX HB2183)

Families and estate managers of any deceased digital user face a variety of company policies and conflicting state and federal laws when attempting to access the user’s online accounts. And the growing use of social media provides even more challenges and opportunities for grieving families.

However, the approach taken by the Uniform Laws Commission (ULC) and introduced in several states causes more harm than good by making a decedent’s private communications public, by default. This conflicts with federal law, ignores the unique nature of digital stored content, and creates acute privacy concerns for decedents and for third parties with whom the decedent communicated. That’s why this legislation is opposed by our association and by privacy advocates such as the ACLU, Center for Democracy and Technology, and Electronic Frontier Foundation.

It’s not just our view that ULC’s approach is the wrong approach. It’s also what Americans believe. The national polling firm Zogby Analytics surveyed adults across age, demographics, and political spectrums on this issue. Zogby’s poll found:

  • By nearly 5-to-1, Americans oppose the approach of the ULC. Over 70% of Americans say their private online communications and photos should remain private after they die, unless they gave prior consent for others to access. Only 15% say that estate attorneys should control their private communications and photos, even if they gave no prior consent for sharing.
  • 65% of Americans say it’s against their privacy if communications and photos are shared without their consent (as they would be under the ULC approach).
  • Just 15% said an estate attorney should make the decision about sharing their private communications and photos.

It is for these reasons that we advocate for a different approach – that starts with privacy but still enables fiduciaries to wrap-up an estate – the Privacy Expectation Afterlife and Choices Act (PEAC) Act.

Under the PEAC Act:

  • The privacy expectations, statements in a will, and settings chosen by users would remain after the user dies. Unauthorized fiduciaries may not read private communications, since privacy choices in life continue after death.
  • Fiduciaries can see the banks, investment managers, and accountants with whom the deceased corresponded. This lets fiduciaries identify important interactions and contact those institutions as part of settling the estate.
  • Fiduciaries can see the contents of communications only when the deceased expressly allowed it in their will, or when there is some other evidence of user consent. If the deceased allowed disclosure of these communications, then service providers must comply, subject to verification.

We hope that as legislators realize just how sensitive our online communications can be, they will adopt the approach in the PEAC Act.

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The iAWFUL reflects the editorial views of the Executive Director of NetChoice and does not necessarily reflect the views of all NetChoice members.

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