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Law lags behind in defining posthumous protocol for online accounts

March 11, 2013 at 12:00 AM EDT
What happens to your email, Facebook page and other digital property when you die? Naomi Cahn of the George Washington University School of Law, and Evan Carroll, co-author of "Your Digital Afterlife," talk to Jeffrey Brown about the legal and ethical quandaries of dealing with a loved one's digital assets after they're gone.
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JUDY WOODRUFF: Next: what happens to what you might call a person’s digital estate, the postings, photos, and memories shared online.

Virginia is the latest among a handful of states trying to navigate a legal and ethical thicket. And it’s a growing concern in the digital age.

Jeffrey Brown has the story.

JEFFREY BROWN: Billions of people around the world now live part of their lives online, sharing photographs, information on relationships and careers, tweets and more.

But what happens when physical lives end and life in cyberspace goes on? Of the one billion people who use the social network site Facebook, for example, an estimated three die every minute. And that can lead to some painful problems. For one thing, there’s no one method or law on the books for how beneficiaries gain access to a deceased person’s digital records.

Virginia dairy farmer Ricky Rash ran into that problem after his 15-year-old son Eric committed suicide in 2011.

RICKY RASH, Father: It was a complete shock, as any suicide is. But we had absolutely no warning. Eric kissed his mom good night the night before. He did his homework. He Armor All-ed the seats in that Oldsmobile that was his. He did everything under the sun to show us it was a normal night.

So, with no answers from home, no answers from school, we were just hoping that there may be something that would give us some insight as to why he chose to make the decision he did. And Facebook was literally the last frontier that we had to investigate.

JEFFREY BROWN: But getting that insight was harder than Rash thought it would be.

RICKY RASH: The laws have just not kept up with technology. And what really frustrated us was when we learned that, as a minor child, his parents do not have access to his online accounts. Once he gets an electronic account that’s password-protected, it’s — he’s entitled to free speech. He signed — he has entered into a legal and binding contract with the social media sites. And they told me that there’s case law to show each of those.

And I said, please, share with me the information. Show with me in the code of the United States or the state code of Virginia where it says a minor can enter into a legal and binding contract, because I don’t believe it as a parent.

JEFFREY BROWN: Rash isn’t alone. On the other side of the country in Oregon, Karen Williams fought Facebook to gain access to her 22-year-old’s son account after he died in a motorcycle accident in 2005.

Her fight spurred a push for legislation in Oregon that was ultimately unsuccessful. Facebook does allow a profile to be memorialized, but certain information is removed and privacy is restricted. Current U.S. law is murky at best. A 1986 federal law prohibits companies from sharing a person’s information, even if it is stipulated in their last will and testament.

Simply handing over passwords in a will violates most social networks’ terms of service. Five states have now acted to put in place some form of digital assets laws: Idaho, Oklahoma, Indiana, Rhode Island, and Connecticut. But Congress has no current plans to take up new federal legislation.

 

And we get more about all this from two experts. Naomi Cahn is with the George Washington University School of Law. Evan Carroll is co-founder of the blog and website “The Digital Beyond” and co-author of “Your Digital Afterlife.”

And, for the record, Facebook and the industry trade group didn’t respond to our requests for an interview.

So, Evan Carroll, let me start — let’s start broadly to help people understand a bit more about what we mean by digital assets. What does that mean? How do you think about it?

EVAN CARROLL, “The Digital Beyond”/ “Your Digital Afterlife”: So, as we said in the tape earlier, the — we have shifted towards living much of our lives online. And there’s all sorts of information that both we create and is created about us that is stored in digital form.

So, some simple examples are your e-mail accounts or the photos you have, the digital photos you have, the digital videos you have, things you may have stored on sites like Twitter and Facebook, all of those things that together really form a corpus data that we are referring to as visual assets.

JEFFREY BROWN: So, and, Naomi Cahn, you’re coming at this from trusts and estates. And sort of how big a problem is this becoming for people who are dealing with wills or who are not dealing with wills and what they own?

NAOMI CAHN, The George Washington University School of Law: This is becoming a huge problem, as the number of digital assets grows, and it grows exponentially each year as we come up with new and new kinds of products on the Internet.

The real problem is that, although we know what to do with the bank account — when you go to a bank and you open a bank account in person, we know exactly what to do if you die. But we don’t know what to do if you open up a bank account online and everything is done online. There are just no — there are few laws that have stepped in to address this.

JEFFREY BROWN: We don’t know because the law is lagging behind in this digital space? Is that …

NAOMI CAHN: Exactly.

JEFFREY BROWN: Yes.

NAOMI CAHN: The law is just beginning to catch up. We could say that we deal with everything online in the same way as we deal with everything that’s not online. That would probably be the easiest thing to do. But we’re not even sure about that.

JEFFREY BROWN: And I was mentioning wills, I mean, because my understanding is very few Americans even have wills for all the normal things we call assets, never mind digital assets, right?

NAOMI CAHN: That’s entirely true. Most people don’t like to think that they might die. So they don’t have a will. They don’t think they need a will. And they just haven’t gotten around to doing anything. And that’s even more true when it comes to digital assets. People have no idea how much value they have in their online accounts.

JEFFREY BROWN: Well, now, Evan Carroll, of course, all of this is tied up very much in privacy law, right, something we talk a lot on this program over the last few years, because on the one hand, there’s great concerns about the privacy of all of our information online.

On the other hand, when someone dies, you want to know — you want someone perhaps to be able to get access to it.

EVAN CARROLL: Sure.

And Naomi compared this to how we look at our physical assets and we compare that to our digital ones. And let’s think about mail. So our physical mail, our heirs would very easily access our mailbox and any mail we had on our desk. However, with our e-mail, they might not be able to access that as easily.

But there’s a key difference. Instead of just having the ability to receive new mail and a few items that have showed up in the last week or months, we have a full archive of everything that was sent and everything that was received, provided that it’s not yet been deleted. So it would be very easy for us to say, well, of course, the executor should have access to that because they would in a tangible world.

But, unfortunately, because there’s so much of that information there, it really causes a privacy concern, because you can learn things about a person that perhaps it wasn’t intended for you to learn.

JEFFREY BROWN: Well, so, Naomi Cahn, we mentioned some states are starting to look at this. Some have taken action.

What kinds of things are they doing?

NAOMI CAHN: Five states — in addition to what we heard about at the beginning of the segment, Virginia, five other states have passed laws that try to give a person managing someone else’s estate, try to give that person some authority to access either e-mail accounts or more generally other kinds of digital assets.

But those laws are just beginning to be used by people managing estates. And we don’t yet really know how they’re going to work out. The Virginia bill that we heard about that Mr. Rash was instrumental in helping to enact has still not yet gone into effect. So we have no idea what will happen when it does.

JEFFREY BROWN: And, Evan Carroll, I mean, there has been pushback by companies. There’s been some states where this hasn’t gone through.

What’s the argument against states taking action? Is it that they need more of a federal overview on this? What is it?

EVAN CARROLL: Well, so, each and every service — let’s use Facebook or Gmail, for example — when someone signs up for it, they enter into a terms of service. That’s the document that many of us probably don’t read as we’re checking the boxes trying to set up our account.

And then there are many things specified. And sometimes it does even specify what should happen to the account once someone is gone. And these service providers, they want to make sure that they’re honoring the contract they have entered into with the account holder. If they have said the account would be private, as in the case of Yahoo!’s terms, they want to honor that promise.

And, also, there’s a — there’s a certain cost to dealing with each and every one of these situations that I would imagine that many of these firms wouldn’t be interested incurring without an automated way for them to know who has passed away, because, unfortunately, there is no reliable electronic record of deaths in the U.S., and certainly not in the world, at the present time.

JEFFREY BROWN: Well, Naomi Cahn, what in the meantime do you advise people to do as we wait to watch what happens with state, federal legislation and the evolving nature of the way companies are dealing with this?

NAOMI CAHN: Just because there’s uncertainty in the law doesn’t mean that you still shouldn’t plan for what to do with all of your online accounts.

So the first thing to do — and everybody should do this — is to make a list of all of your accounts. The average person has 20 to 25 digital accounts, and each of them…

JEFFREY BROWN: Twenty to twenty-five?

NAOMI CAHN: Twenty to twenty-five?

JEFFREY BROWN: Scary to think about.

NAOMI CAHN: Scary to think about, and many of us have more, if we actually sit down to count.

And each of those accounts has a password. Well, so, the first thing to do is to list the accounts and to list the passwords and figure out how you want to keep track of all of that information. If you put it in a will, well, a will becomes a public document. So you certainly don’t want all of those assets listed in a will, along with your password, because then anybody can access them.

So, first of all, keep track. Make a list. Figure out. Give access to that list to somebody else. Next thing to do is to write down what you want to have happen. You can’t be certain that if you write something down that the courts will enforce it. But it’s the best way to make sure everybody knows what you want.

And then hope that whatever you want to have happen will, in fact, happen.

JEFFREY BROWN: All right, we will leave it with hope.

Naomi Cahn and Evan Carroll, thank you both very much.

NAOMI CAHN: Thank you very much.

EVAN CARROLL: Thank you.

JEFFREY BROWN: And, online, you can read more about Ricky Rash, the Virginia farmer trying to gain access to his son’s online accounts.

And while you’re there, we want to know, what do you think should happen to your digital assets after you die? Join the conversation, which you can find on our home page.