TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Tuesday, January 8, 2013

WSJ: Life, Death, and Facebook

Wall Street Journal:  Life and Death Online: Who Controls a Digital Legacy?:

The digital era adds a new complexity to the human test of dealing with death. Loved ones once may have memorialized the departed with private rituals and a notice in the newspaper. Today, as family and friends gather publicly to write and share photos online, the obituary may never be complete. 

But families ... can lose control of a process they feel is their right and obligation when the memories are stored online—encrypted, locked behind passwords, just beyond reach. One major cause is privacy law. Current laws, intended to protect the living, fail to address a separate question: Who should see or supervise our online legacy? ...

U.S. and Canadian laws, which are similar for the most part, don't treat digital assets like physical ones that can be distributed according to wills. In 1986, Congress passed a law forbidding consumer electronic-communications companies from disclosing content without its owner's consent or a government order like a police investigation. Although that law predates the rise of the commercial Internet, courts and companies have largely interpreted it to mean that the families can't force companies to let them access the deceased's data or their accounts. ...

Five states have passed legislation giving executors power over digital assets. Connecticut and Rhode Island laws cover only email, while Indiana, Idaho, and Oklahoma laws include social-networking and blogging accounts. The laws remain largely untested in court.

National action isn't expected for at least two years. The Uniform Law Commission, a group that drafts state laws for nationwide consideration, met for the first time in November to tackle a digital-asset law. Under one proposal, the law could broadly redefine the "authorized user" of an account to include an agent or a representative of his estate, says Suzanne Walsh, a Connecticut estate lawyer leading the committee. ...

Companies fear a patchwork of laws or having to adjudicate who should get a dead person's files. Handing over data too readily could undermine their users' trust. And fundamentally, leaving dead people's accounts active runs counter to a core business proposition of sites like Facebook, which is to sell advertising targeted at real living people. ...

In 2009, Facebook began allowing family members to either delete or "memorialize" the accounts of the deceased. In a memorialized account, a person's existing friends network can still leave comments and photos with the account of a dead person. But nobody has permission to log in or edit the account.

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