Empowering users to control who can see their online accounts.
As we increasingly use online services it becomes more important to consider our digital afterlife. Online service providers are working diligently to provide tools that empower their users to decide what happens to their privacy when they pass away. At the same time, online service providers want to ensure that fiduciaries have the access they need to digital assets to administer an estate.
What is the Federal Electronic Communications Privacy Act (ECPA)?
The Electronic Communications Privacy Act (ECPA) is a federal law that establishes standards for access to private information transmitted and stored on the Internet, such as emails, photos, or direct messages.
What does ECPA do?
ECPA sets “Privacy On” by default. The Act requires every provider of electronic communications to obtain lawful consent before releasing the contents of communications. This consent can be provided by only:
Failure of an online service provider to obtain lawful consent can result in private lawsuits by any person aggrieved by the disclosure.
Why should we treat letters and emails differently when it comes to fiduciary access?
Stored communications, like emails and tweets, are significantly different from letters. Unlike letters, which require an affirmative step to store, emails and messages are stored by default, require several steps to delete, and involve a third-party custodian that has responsibility by federal law to protect the privacy of the communications.
Also, due to their immediate nature, users treat electronic communications more like voice communications than like letters – and thus should receive a greater degree of privacy protection than letters. Finally, if someone stores letters under their bed or in a closet, they can expect discovery of the letters when someone cleans their room when they die. They likely do not expect the same for their confidential online communications.
Why does UFADA (Revised) only allow access to records or contents subject to a will?
ECPA distinguishes between content and transactional information, such as who is the sender or the recipient of an email. This means fiduciaries can see with whom the decedent communicated, such as banks, real estate companies, etc., and then contact those entities on behalf of the estate to gain details about the account – all without accessing the private information of the decedent or other persons contained in the emails.
ECPA allows disclosure to fiduciaries with lawful consent – i.e. a will expressly granting the disclosure. But service providers expose themselves to civil liability resulting from improper disclosure. This is why a will and indemnification are needed for disclosure of contents.
What are the problems with a disclose everything approach?
The disclose everything by default approach considers only the fiduciary’s interests. It disregards the interests of the deceased, existing federal law, and it does not protect the communications of the people who corresponded with the deceased – including highly confidential communications (e.g. with doctors, psychiatrists, addiction counselors, and clergy).
Some flaws of this approach:
NetChoice-Commissioned Survey Finds More than 70 Percent of Americans Want Private Online Communications to Remain Private After They Die
Americans say that their right to privacy does not end when they take their last breath, and believe that maintaining the privacy of their electronic communications trumps giving access to family and heirs, according to a new poll conducted by Zogby Analytics for NetChoice.
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.
The poll findings conflict with the actions of estate attorneys, who are lobbying for legislation in many states that would give them new powers to access private communications of the deceased – even against express privacy choices the individual made while alive.
“It is clear that all Americans regardless of age groups or political leanings do not want their online privacy to end when they die,” said Steve DelBianco, executive director of NetChoice. “For nearly 30 years, federal law has prioritized the privacy of email and other electronic communications. Estate attorneys want to dismantle these privacy protections so they can more easily access and distribute your digital legacy”
Additional findings included:
The interactive survey of 1,012 adults was conducted on January 27, 2015 and has a margin of error of +/- 3.1 percentage points.
After a person dies which of the following describes your view when it comes to keeping the emails and instant messages along with digital photos they have sent private?
Which of the following describes your view when it comes to keeping electronic communications and photos private, so they could not be shared without your consent?
How do you want an online service to handle your private accounts when you die?
In your opinion, what should be the priority on privacy of online communications when someone dies?
About the poll: Zogby Analytics was commissioned by NetChoice to conduct an online survey of 1,012 adults in the US, over the period January 27-28, 2015.
Using trusted interactive partner resources, thousands of adults were invited to participate in this interactive survey. Each invitation is password coded and secure so that one respondent can only access the survey one time. Using information based on census data, voter registration figures, and exit polls, Zogby uses complex weighting techniques to best represent the demographics of the population being surveyed. Weighted variables may include age, race, gender, region, party, education, and religion.
Based on a confidence interval of 95%, the margin of error for 1,012 is +/- 3.1 percentage points. This means that all other things being equal, the identical survey repeated will have results within the margin of error 95 times out of 100.
Zogby Analytics is respected nationally and internationally for its opinion research capabilities. Since 1984, Zogby has empowered clients with powerful information and knowledge critical for making informed strategic decisions.
