Access to Digital Assets Act
July 17, 2014

What Happens To Your Online Information After You Die?

April Flowers for - Your Universe Online

When thinking about the end of your life, most people think of living wills in terms of medical care, and final wills in terms of the distribution of assets. But have you considered your digital assets and who should have access to them after your death?

The Associated Press (AP) reports that a group of influential lawyers say your loved ones should gain access to any and all digital accounts unless you specify differently in your will.

State governments appoint members to the Uniform Law Commission to help standardize state laws. The Commission was expected to endorse a plan this week at their annual meeting to automatically give loved ones access to — but not control of — digital accounts unless the will of the deceased specifies otherwise.

Gizmodo reports that this is one of the "more important legal dilemmas of recent years." Only a handful of states have clear laws on the subject.

If this becomes state law, designating access to online accounts could become pivotal in estate planning. People would be able to decide which accounts should die when they do.

The Commission expects some pushback from privacy advocates, who say a person shouldn't have to draft a will to keep their loved ones from reading every email or reading every wall post on Facebook.

“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,” Karen Williams of Beaverton, Oregon, told AP reporter Anne Flaherty. Williams sued Facebook for access to her 22-year-old son Loren’s account after he died in a 2005 motorcycle accident.

There is more at stake here than just privacy. Passwords left in wills become public record, exposing your accounts to anyone who wants to look. And the Terms of Service (TOS) agreements that we agree to on many sites specifically prohibit anyone from using another person's account — making your loved ones essentially criminals when they log in.

The issue isn't just about social media, like in Williams' case. Email records can contain financial information, and many of us do our banking — from checking accounts to mortgages — online. A person might own digital property, such as a popular blog, that is worth money to their loved ones. Can you imagine what the private emails of President Bill Clinton might fetch at auction?

Some online companies have already put rules in place to deal with this issue. Facebook will memorialize accounts to allow friends and family to continue to view photos and posts, while Google (Gmail, YouTube, and Picasa Web Albums) will delete an account if it isn't used in a certain amount of time. Yahoo's TOS specifies that a person's account dies when they do.

But should a service company like Facebook be allowed to decide what happens to your digital assets? Many courts are disagreeing.

The proposed law would trump any TOS agreements, allowing the deceased's representative, such as an executor of the will, access to the accounts. Basically this means that the executor, or the grieving parent/spouse, could read the emails of the deceased, but not send emails from that account.