Steven Groschen, MJLST Staff Member
Facebook recently announced a new policy that grants users the option of appointing an executor of their account. This policy change means that an individual’s Facebook account can continue to exist after the original creator has passed. Although Facebook status updates from “beyond the grave” is certainly a peculiar phenomenon, it fits nicely into the larger debate of how to handle one’s digital assets after their death.
Rebecca G. Cummings, in her article The Case Against Access to Decedents’ Email: Password Protection as an Exercise of the Right to Destroy, discusses some of the arguments for and against providing access to a decedent’s online account. Those favoring access to a decedent’s account may assert one of two rationales: (1) access eases administrative burdens for personal representatives of estates; and (2) digital accounts are merely property to be passed on to one’s descendants. The response from those disagreeing with access is that the intent of the deceased should be honored above other considerations. Further they argue that if there is no clear intent from the deceased (which is not uncommon because many Americans die without wills), then the presumption should be that the decedent’s online accounts were intended to remain private.
Email and other online accounts (e.g. Facebook, Twitter, dating profiles) present novel problems for property rights of the deceased. Historically, a diary or the occasional love letter were among the most intimate property that could be transferred to one’s descendants. The vast catalogs of information available in an email account drastically changes what is available to be passed on. In contrast to a diary, an email account contains far more than the highlights of an individual’s day — emails provide a detailed account of an individual’s daily tasks and communications. Interestingly, this in-depth cataloging of daily activities has led some to the argument that information should be passed on as a way of creating a historical archive. There is certainly historical value in preserving an individual’s social media or email accounts, however, it must be balanced against the potential invasion of his or her privacy.
As of June 2013, seven states have passed laws that explicitly govern digital assets after death. However, the latest development in this area is the Uniform Fiduciary Access to Digital Access Act, which was created by the Uniform Law Commission. This act attempts to create consistency among the various states on how digital assets are handled after an individual’s death. Presently, the act is being considered for enactment in fourteen states. The act grants fiduciaries in certain instances the “same right to access those [digital] assets as the account holder, but only for the limited purpose of carrying out their fiduciary duties.” Whether or not this act will satisfy both parties in this debate remains to be seen.