WASHINGTON – You’ve probably decided who gets the house or that family heirloom up in the attic when you die. But what about your email account and all those photos stored online?
Grieving relatives might want access for sentimental reasons, or to settle financial issues. But do you want your mom reading your exchanges on an online dating profile or a spouse going through every email?
The Uniform Law Commission, whose members are appointed by state governments to help standardize state laws, was on track Wednesday to endorse a plan that would give loved ones access to – but not control of – the deceased’s digital accounts, unless specified otherwise in a will.
To become law in a state, the legislation would have to be adopted by the legislature. If it did, a person’s online life could become as much a part of estate planning as deciding what to do with physical possessions.
“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,” said Karen Williams of Beaverton, Oregon, who sued Facebook for access to her 22-year-old son Loren’s account after he died in a 2005 motorcycle accident.
The question of what to do with one’s “digital assets” is as big as America’s electronic footprint. A person’s online musings, photos and videos – such as a popular cooking blog or a gaming avatar that has acquired a certain status online – can be worth considerable value to an estate. Imagine the trove of digital files for someone of historical or popular note – say former President Bill Clinton or musician Bob Dylan – and what those files might fetch on an auction block.
“Our email accounts are our filing cabinets these days,” said Suzanne Brown Walsh, a Cummings & Lockwood attorney who chaired the drafting committee on the proposed legislation. But “if you need access to an email account, in most states you wouldn’t get it.”
But privacy activists are skeptical of the proposal. Ginger McCall, associate director of the Electronic Privacy Information Center in Washington, said a judge’s approval should be needed for access, to protect the privacy of both the owners of accounts and the people who communicate with them.
“The digital world is a different world” from offline, McCall said. “No one would keep 10 years of every communication they ever had with dozens or even hundreds of other people under their bed.”
Many people assume they can decide what happens by sharing certain passwords with a trusted family member, or even making those passwords part of their will. But in addition to potentially exposing passwords when a will becomes public record, anti-hacking laws and most companies’ “terms of service” agreements prohibit anyone from accessing an account that isn’t theirs. That means loved ones technically are prohibited from logging onto a dead person’s account.
Several tech providers have come up with their own solutions. Facebook, for example, will “memorialize” accounts by allowing already confirmed friends to continue to view photos and old posts. Google, which runs Gmail, YouTube and Picasa Web Albums, offers its own version: If people don’t log on after a while, their accounts can be deleted or shared with a designated person. Yahoo users agree when signing up that their accounts expire when they do.
But the courts aren’t convinced that a company supplying the technology should get to decide what happens to a person’s digital assets. In 2005, a Michigan probate judge ordered Yahoo to hand over the emails of a Marine killed in Iraq after his parents argued that their son would have wanted to share them. Likewise, a court eventually granted Williams, the Oregon mother, access to her son’s Facebook account, although she said the communications appeared to be redacted.
Enter the Uniform Law Commission. According to a draft of the proposal, the personal representative of the deceased, such as the executor of a will, would get access to – but not control of – a person’s digital files so long as the deceased didn’t prohibit it in the will. The law would trump access rules outlined by a company’s terms of service agreement, although the representative would still have to abide by other rules including copyright laws.
That means, for example, a widow could read her deceased husband’s emails but couldn’t send emails from that account. And a person could access music or video downloads but not copy the files if doing so violated licensing agreements.
Williams said she supports letting people decide in their wills whether accounts should be kept from family members.
“I could understand where some people don’t want to share everything,” she said in a phone interview this week. “But to us, losing him [our son] unexpectedly, anything he touched became so valuable to us.” And “if we were still in the era of keeping a shoebox full of letters, that would have been part of the estate, and we wouldn’t have thought anything of it.”