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Internet Governance 03/29/2022

Protecting our digital and private afterlife

Carl Szabo
Carl Szabo Vice President and General Counsel

Whether we connect with friends and family via Facebook, direct messages, or email, we consciously put our personal and private information online. Every comment, post, and chat is a digital record that will outlast any previous mode of communication. 

So when we die, websites need to balance the needs and rights of our family with our expectations of privacy. And in doing so, policy makers and digital services that hold our data must make difficult decisions about allowing access to private information when consent has not been expressly given. There are many circumstances where families need and should get access to digital information of their passed loved ones. Equally there are many circumstances where users would not want such information shared after they die. 

Before the internet, very little information about us was stored in password-protected computers. As a result, your next of kin could access all your files by default through fiduciaries who would be able to access them. Physical objects like filing cabinets could be easily passed through inheritance.

Another key way digital information differs from physical information is the sheer amount of it. While most people get rid of almost all mail that gets sent to them, the same isn’t true for email. Digital storage is vastly cheaper than physical storage, and that means we’re far more likely to store a lot more things online. Given strong security measures in place for digital storage, the internet has given consumers a new ability to store huge amounts of photos, files, and communications that they assume no one would ever see. 

Given these realities, many Americans would be understandably uncomfortable with their next of kin having access to all their online information. In the modern world, inheriting someone’s filing cabinet is just not the same as inheriting all of their digital belongings.

That’s why in 2012, when privacy advocates and online platforms fought trust and estate attorneys over whether fiduciaries could access all contents of online communications, lawmakers spent three years in discussions, disagreements, legislative hearings, and a stalemate over what to do with our digital afterlives. Privacy advocates and online platforms wanted all our communications protected by default when we die to protect our privacy. But trust and estate attorneys wanted to see everything by default in accordance with their offline fiduciary responsibilities.

In 2015, fiduciaries and the online providers came to an agreement that ensured more than 95% of Americans, including Californians, enjoy protection and certainty about their data when they’ve passed on. If enacted in Louisiana, Oklahoma, and Massachetts, this legislative model would cover all American residents.

When we die, the contents of our digital accounts are kept private by default. Fiduciaries can see to whom we spoke, but not what we said, so our next of kin can identify banks we used, lines of credit we opened, and the recipients of our messages. If we make the express decision in our will or in an online service’s digital afterlife preferences, only then can our next of kin gain more access to our online lives. In essence, our privacy decisions and expectations in life follow us in the afterlife.

This model means that we are given the final say on what happens to our digital belongings when we die, and ensures that deeply personal information isn’t shared by digital companies without our consent.

The world of online privacy is deeply interconnected and the question of how to handle our digital afterlives is just one of thousands of privacy concerns. Congress should recognize Americans wan’t clarity in a breadth of privacy and online safety discussions. If the ability to strike an effective compromise between privacy advocates and fiduciary attorneys in digital decedent legislation is something to go off of, our lawmakers can and should reach similar compromises regarding our other online safety and digital privacy concerns.

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