May 6, 2014

Proposed law would clarify who gets access to a deceased person’s digital accounts

When Facebook turned 10 recently, many users were amused by the “Look Back” videos that compiled the highlights of their life on the social media network. But one father, John Berlin, couldn’t watch the video he most wanted to see – that of his deceased son, Jesse. Facebook hadn’t enabled the videos for “memorialized” accounts, profiles with modified settings when a user dies. So Berlin posted a video on YouTube pleading with Facebook to make him Jesse’s video.

In response, Facebook now takes requests for “Look Back” videos of users who have passed away. The company also modified the administration of memorial accounts to honor the original visibility settings of the deceased’s profile. Both of these changes are yet another example of how technology companies are writing the rules as they go in the largely unfamiliar territory of managing one’s digital life after death. 

In a previous post, we outlined the legal landscape evolving alongside technology companies’ policies. The crux of the matter concerns who should be granted access to digital accounts once someone dies. So far, companies have largely maintained control by default, to the chagrin of many family members who feel entitled to access accounts, especially when the deceased is a minor. But the balance may soon swing in families’ favor if a new legal proposal gains traction.

The Uniform Law Commission, a body of lawyers who produce uniform legislation for states to adopt, recently drafted the “Fiduciary Access to Digital Assets Act (FADA).” It would grant fiduciaries (a catch-all term for the various types of people who can be legally appointed to hold assets) broad authority to access and control digital assets and accounts.

FADA is considered by many attorneys to be an improvement over existing law because it would clarify and expand who can access a deceased person’s online accounts. The proposal would create four categories of fiduciaries who would be able to take over these accounts in the event of a death: a personal representative of a deceased person’s estate; someone carrying out a power-of-attorney; a trustee of a trust; or someone appointed by a court to act on behalf of a protected person. Existing laws typically only apply to personal representatives.

The Commission will vote on the proposed law in July. But two issues still remain. The first revolves around “media neutrality,” the idea that the treatment of assets should be the same regardless of whether they are digital or physical. The proposal would require certain fiduciaries to obtain access to digital assets, while it would be automatic for others.

The final draft would treat all fiduciaries alike and grant authority over digital assets in the same ways authority is assumed over physical assets. This has been a legal gray area. Supporters of media neutrality argue that these changes would also keep the law flexible and adaptive as technology evolves.

The second issue concerns terms-of-service agreements, the lengthy text people often click through (but don’t read) before signing up for a service like Gmail or iTunes.

The latest proposal would allow a fiduciary to “stand in the shoes of” the account holder. But websites may not want to maintain accounts of the deceased either for storage purposes or to avoid any legal responsibility altogether. Some are worried that websites will try to circumvent the prospective law by requiring users to sacrifice their fiduciary’s future access and control. Further, there is concern that if websites preemptively shut down accounts of deceased users, fiduciaries will not be able to execute their legal duty. Language to prevent such loopholes is included in the final draft.

Many estate lawyers and other internet experts hope that once the model law is published, states will widely adopt it. Seven states have already enacted their own laws, and another fourteen have proposed legislation dealing with these issues.

There is quite a bit of variation among existing state laws. For instance, some laws and proposed legislation only apply to minors. The existing laws often differ over what kinds of accounts are covered (email, social networking, blogs, etc) while some have adopted blanket language that the law is meant to cover all “digital accounts/assets.”

Access to Digital Accounts After Death Varies State to State

The table below outlines the status of digital asset laws at the state level. It is adapted from a list compiled by Jim Lamm from the Minneapolis office of the law firm Gray Plant Mooty. For more detail on state laws, see his overview.

Personal representative may… …these digital assets
Digital Accounts Email Social Media Blog Online text
message services
Minors only?
Changing Legislation Maine has a proposed law to study the issues of digital assets. New York, Michigan, and North Dakota have proposals to amend existing laws to include digital assets.
Pew Research Center
CURRENT LAWS
Connecticut access check
Idaho control check check check check
Indiana access check
Nevada terminate check
Oklahoma control check check check check
Rhode Island access check
Virginia assume terms of service check check
PROPOSED LAWS
Louisiana assume terms of service check check
Maryland control check check check
Massachusetts access check
Nebraska control check
New Hampshire control check
New Jersey control check
North Carolina control check
Oregon access check
Pennsylvania conrol check check check check
Virginia control check check check check check

Topics: Blogs, Death and Dying, Future of the Internet, Social Media

  1. is a Research Assistant at the Pew Research Center's Internet & American Life Project.

Leave a Comment

Or

All comments must follow the Pew Research comment policy and will be moderated before posting.

2 Comments

  1. Alan Peery2 months ago

    One of the other big puzzles: Which state’s rules should apply? The state of the company providing a particular account? The state the deceased was living in when they died? The state the deceased was living in when they signed up for the account originally?

    Reply
  2. Jeanne Heydecker2 months ago

    What laws, if any, are in place for Americans living overseas with no domicile in the US? While this article discusses state laws, are there any federal laws in place to protect our digital assets? Or should expats prepare their will with a specific codicil granting access to a specific beneficiary?

    Reply