Time was when the belongings you left behind after death were tangible — furniture, jewelry, letters — and financial property, which hundreds of years of experience have taught executors how to handle. Today, some of the most valuable keys to our lives and identities exist digitally, and are technically owned by companies like Google or Facebook.
For the digital assets stored on shared servers in the cloud, legal systems have yet to catch up to help decide who controls your data when you're dead. And uniform laws around control of these assets could help.
Only five states have enacted laws so far to address digital estate management, according to an article in the journal CommLaw Conspectus. There is no uniform federal law. Without it — and if you're in a state without clear-cut digital estate guidelines — the various service agreements of Internet companies govern what happens to our digital identities after death.
That can be problematic because of privacy concerns and the lack of uniformity in policies among Internet and social media companies.
"The problem arises from the fact that every company's service agreement is vastly different," Maria Perrone writes for the Conspectus. "There is no uniformity in what happens to the information stored in a decedent's e-mail account versus his Facebook account."
In the past few years, who gets to control a loved one's digital life has added a difficult layer of confusion and complexity to navigate after a death. In 2005, when 22-year-old Loren Williams died in a motorcycle accident, his mother turned to Facebook to learn more about him. But Facebook administrators locked her out of her son's account. The incident led to a lawsuit and a two-year legal battle. Facebook eventually granted the mother 10 months of access to her son's account.
For the family of Anthony Cannata, the murky rules around digital asset management made the 20-year-old's suicide even more painful. Before taking his own life in 2011, Cannata uploaded a photo to his Facebook account that showed him holding a gun to his mouth. His family and friends petitioned Facebook to remove the photo or grant them access to his account to remove it after his death. But because they faced obstacles in getting access, the disturbing photo stayed online for more than a month, not removed by Facebook until Cannata's mother sent the company a newspaper article about the situation.
This lack of clarity can be maddening during an already painful time. But there are signs of progress. Since Internet companies serve clients across the country, the Uniform Law Commission is at work to avoid a patchwork of state-by-state rules that would add confusion. A committee of the nonpartisan group of lawyers appointed by state governments is working on recommended bill language that would give executors the same powers over digital assets as they have over financial and physical ones.
Laws around this subject would also free companies from concerns about liability. But in the meantime, Internet firms are individually taking steps to clarify their policies in the face of uncertainty. In April, Google released the Inactive Account Manager, which lets users set up a digital will. When enabled, it activates a dead-man's switch, and if the account isn't used for a certain period, an email is sent to a trusted contact and that contact can delete the account automatically or gain access to it.
Perrone recommends a broad, uniform law that accounts for technological advances that haven't occurred, in addition to the ones that are already part of daily life — email, social media accounts, photo-sharing sites, blogs, video-hosting sites, online shopping accounts, music accounts and more.
"Because technology will continue to evolve — and people will die — a law that can evolve along with technology is truly needed," Perrone writes.