Managing Assets for the ‘Digitally Dead’ repost thecourt.ca
These are interesting legal questions that have caught the attention of lawmakers in the United States. The Uniform Law Commission recently announced that it will conduct a study on fiduciary power and the authority to access digital property after death and a handful of American states have created laws governing digital asset management after death. Nebraska is the latest state to address the issue of digital legacy with a proposed bill that would allow the executor or administrator of an estate “to take control of, conduct, continue, or terminate any accounts of a deceased person on any social networking website, any microblogging or short message service website or any e-mail service websites.”
Facebook’s current policy does not provide loved ones with a deceased user’s login information, but it does allow for an account to be memorialized so that only confirmed friends can view the profile and post messages in remembrance. Verified family members may also request a loved one’s account to be removed from the site.
The issue of who should have access to our digital assets after we die is yet another example of how property rights are continuously evolving to catch up to developments in new technology. However, this matter also raises important questions about the privacy rights of the dead. Do we really want family members reading through our private messages after we’re gone? And what about those photos that we uploaded to our Facebook account but decided to keep private?
In a recent interview on the CBC, it was suggested that there is no difference between our supposedly private online messages and handwritten love letters we might discover amongst our grandparents’ belongings. If a family member has access to everything in our home, then according to this view, they should have access to everything in our digital home as well.
The problem with this view has to do with society’s changing conceptions of privacy. At one time, we may have only kept a handful of memorabilia that we considered to be private, whereas today nearly all of our private communications are stored online. While the question as to who “owns” this material online has yet to be decided, it is likely that many Internet users would be uncomfortable with the idea of granting their family members with unlimited access to their digital life after they pass on.
Ultimately the decision about who has access to your digital property is a personal matter that should be addressed by individuals through their wills. Thus, the evolving nature of digital property rights is an area that estate lawyers should keep pace with in order to ensure their clients’ wishes regarding their digital lives are respected after death.