Who Owns Your Online Afterlife?
July 23, 2014 by Bethany Leggett, The Brunswick News, Ga: McClatchy-Tribune Information Services
July 23–In the age of laptops, tablets and smartphones, users can document almost every step of their lives. With a few clicks of a button, they can transfer funds between bank accounts, create a photo album from a family vacation or write to their loved ones living far away.
But should your emails, web albums and other online accounts die when you do? Or should you be able to pass them down to a family member much as you would a house or a box of letters?
Facebook and other tech companies have been reluctant to hand over their customers’ private data, and many people say they wouldn’t want their families to have unfettered access to their life online. But when confronted with death, families say they need access to settle financial details or simply for sentimental reasons.
What’s more, certain online accounts can be worth real money, such as a popular cooking blog or a gaming avatar that has acquired certain status online.
“Any asset a person owns should be planned for and that includes any digital asset,” saidEugene Caldwell, who specializes in estate planning, wills and trusts at his law practice at1616 Union St.,Brunswick. “Whether it’s a personal or commercial asset, like a Facebook page or blog, the account user needs to provide a provision in their planning about who has access to it after they die.”
One particular area that Caldwell said is overlooked is a list of passwords users have for their profiles.
Caldwell said it’s a long and laborious process for family members trying to get access to accounts without being left the user’s password.
“The ability to pass on passwords from the person who owned or created the account is critical. If you make the passwords available to the executor or designate who you want to take over an account or use a good password manager, you can solve this problem easily,” he said.
Although many websites have an option to recover passwords, most require accessing the email account linked with the web profile. If a loved one can’t access the email account of the deceased, the password retrieval process is unhelpful.
Password managers are software applications that can help organize and store passwords or PINS for dozens of accounts in addition to including an extra security step for online protection. By creating an account with a password manager, one would have access to most of the accounts online.
However, there are some risks to including passwords in wills and legal documents. In addition to potentially exposing passwords when a will filed in probate court becomes public record, anti-hacking laws and the terms of service agreements prohibit access from anyone other than the original user, creating a gray area for legal standards.
Several tech providers have come up with their own solutions. Facebook, for example, will “memorialize” accounts by allowing already confirmed friends to continue to view photos and old posts.
Google, which runs Gmail,YouTube and Picasa Web Albums, offers its own version, but if people don’t log on after a while, the accounts can be deleted or shared with a designated person.Yahoo users agree when signing up that their accounts expire when they do.
But legal experts aren’t convinced that a company supplying the technology should get to decide what happens to a person’s digital assets.
A national group of lawyers says that families should immediately get access to everything online unless otherwise specified in a will. They are urging state lawmakers to enact their proposal so loved ones don’t get shut out as American lives move increasingly online.
The Uniform Law Commission, whose members are appointed by state governments to help standardize state laws, on Wednesday endorsed the plan for “digital assets.” It would give loved ones access to — but not control of — the deceased’s digital accounts unless a will says otherwise.
To become law, the legislation would have to be adopted by each state’s legislature. It would trump “terms of service” agreements by tech companies that prohibit people from accessing an account that isn’t theirs.
“This is something most people don’t think of until they are faced with it. They have no idea what is about to be lost,” saidKaren Williams ofBeaverton, Ore., who sued Facebook for access to her 22-year-old son Loren’s account after he died in a 2005 motorcycle accident.
Williams said she supports letting people decide in their wills whether accounts should be kept from family members.
“I could understand where some people don’t want to share everything,” she said. “But to us, losing him (our son) unexpectedly, anything he touched became so valuable to us. If we were still in the era of keeping a shoebox full of letters, that would have been part of the estate, and we wouldn’t have thought anything of it.”
Privacy activists are skeptical of the proposal.Ginger McCall, associate director of theElectronic Privacy Information Center inWashington, said a judge’s approval should be needed for access, to protect the privacy of both the owners of accounts and the people who communicate with them.
“The digital world is a different world” from offline, McCall said. “No one would keep 10 years of every communication they ever had with dozens or even hundreds of other people under their bed.”
Caldwell is also skeptical. He said the Internet and its regulations are still a growing area of the law but he doubts statewide legislation will be enacted to unify every site’s rules regarding removal or access for loved ones of deceased users.
“I don’t think state law would be passed because the contracts are with individuals and web companies,” he added.
