I have previously written on what happens to your digital assets when you die – specifically your Facebook or Twitter accounts, and the like – Facebook Blog. Prior to their most recent change, Facebook would not allow family to access a deceased person’s account, nor would they allow a Personal Representative the authority to access the account. Facebook would allow the family or Personal Representative to request the account be deleted, or they would convert the account to a “memorial” account which then locked it’s content and restricted viewing to the decedent’s “friends” on Facebook. Facebook will not give out the decedent’s passwords or allow someone, to log into a decedent’s account.
In February 21, 2014, News Release, Facebook updated its policy to allow a decedent’s account to be visible based on the settings the deceased user had specified in his or her privacy settings. In other words, if a decedent had the Facebook page “public”, then their memorial page will be visible to the “public”. If their Facebook page is limited to “friends only” than only friends will be able to see their Facebook page. The other change is the ability to request a “look back” movie for a deceased user’s Facebook. Such a request can only be made by a “friend” and only after the account has been “memorialized”.
I do not think that Facebook’s policy changes are enough to make a difference. What really needs to be changed is the ability for a personal representative, or family members of the decedent, to be able to have access to the decedent’s accounts. And I am not talking about just FB and Twitter – other companies like Apple’s iTunes, Amazon’s Kindle, and the like, have terms of service which do not allow a person to log onto another person’s account, or pass their music or books on to another person. Many companies do not even have a procedure for what happens to your digital assets when you pass away.
In fact, accessing another person’s account without authorization (and if someone is dead, you can’t get authorization) may be a violation of The Computer Fraud and Abuse Act, not to mention a violation of federal and state data privacy laws (such as the Stored Communications Act). Seriously, how many times have you violated a company’s terms of service by giving your password to someone else to access your accounts. I’m afraid that many of us do it on a regular basis. And I know many families who have come to me and told me they were able to figure out passwords to access their loved one’s accounts which may be a violation of federal laws (kind of scary).
Clearly, online service providers (like Amazan and Apple) and social media companies (like Facebook and Twitter) need to change their terms of service and have clear policies in place as to whether a user’s accounts terminate at death and whether the account is transferrable to or accessible by family or an executor at the death of the user. If these companies will not change their terms of service, then federal and state laws need to be addressed to provide rights to family and executors at the death of the user which could include allowing the user to name “beneficiaries” of their accounts or allowing the beneficiaries to review the contents of the account at the user’s death.