The disposition of online accounts when the account creator (account user) dies is becoming a hotly debated topic between next of kin and the tech industry. Â Most people are not aware that many internet company service agreements prohibit access to their accounts by a person other than the account user, whether the user is dead or alive, and even when the user has voluntarily shared the account password with another person. Â The result? Â Aside from grieving friends and family being unable to access or close accounts, by the end of 2012, an estimated 3 million Facebook profiles became memorials to the deceased, and an estimated 30 million virtual profiles of the deceased continue to exist on Facebook.
The problem surpasses social networking sites such as Facebook. Millions of people now store family photo albums electronically and use the internet to manage the householdâ€™s finances. The issue of online account access for deceased family members is becoming pervasive, as stories of heartbroken spouses, parents, and friends denied access to their loved-ones accounts increase.
Even the US Government has taken note, stating in its blog (usa.gov) that if you have social media profiles set up online, you should create a statement of how you would like your online identity to be handled. Just like a traditional will helps your survivors handle your physical belongings, a social media will spells out how you want your online identity to be handled. Like with a traditional will, you need to appoint someone you trust as an online executor. This person will be responsible for closing your email addresses, social media profiles, and blogs after you are deceased.
But the problem is not so easily solved. Facebook (and other sites) now typically give family members an option to delete or memorialize a deceased user's accounts upon receiving an obituary or death certificate. The option to delete or memorialize an account does not provide friends and family access to the account, at least not without a court order, which is what a Wisconsin couple obtained last June after their 23 year old son committed suicide. Common language in website service agreements, (for example, Facebook's own Terms of Service Agreement) makes it a violation of the terms of service to let anyone else log into your account. See Facebook Statement of Rights and Responsibilities § 4.8 http://www.facebook.com/legal/terms (You will not share your password, anyone else access your account, or do anything else that might jeopardize the security of your account.).
Although the US Government recommends creating a social media will, the tech industry cites the federal government's own Stored Communications Act and Computer Fraud and Abuse Act as the reasons they cannot provide family members access to a deceased person's account. That these consumer protection laws would be applied to bring criminal charges against a fiduciary accessing a dead family member's account flies in the face of logic and during my prosecution years, I would say such action goes against the intent of the law. But stranger things have happened, and charges have, in fact, been filed.
In addition to terms of service agreements and federal laws, states have begun passing laws to address the disposition of digital property upon a user's death or incapacity. Idaho (along with just a few other states) has passed laws which grant conservators (a person who manages property for an incapacitated individual) and personal representatives (the executor or an estate) the power to take control of, conduct, continue or terminate any accounts of the protected person on any social networking website, any microblogging or short message service website or any e-mail service website. Keep in mind, however, that this power is only granted to someone who has obtained a court order, and the company's terms of service can still apply to restrict the available courses of action: While a court order may allow another person to follow the company's policy and close an account, the court order may not allow that person to have access to the account information, such as photographs. And if another person accesses another party's account in violation of the company's service agreement, that person could be charged with cybercrimes and civil action.
The potential charges and liability exists because of the tech industry's position that a person's voluntary service agreement (typically signed when a person creates a user account) and federal laws prevent companies from sharing a person's digital assets even if direction is included in a will. Last year, an Oregon bill which would have allowed access to deceased user's accounts was killed while under consideration due to attack by the tech industry. A federal bill aimed at modernizing the federal laws failed in the House Judiciary Committee last year. Until something changes, some social media sites take the position that even a court order does not require them to provide access to another person's account. For example, Facebook's service agreement states that "We may access, preserve and share your information in response to a legal request (like a search warrant, court order or subpoena) if we have a good faith belief that the law requires us to do so."
So, what can you do? With the conflict between federal and state laws, and the added conundrum of company terms of service, the problem is far from being solved.
If you are looking for the most seamless closure of your accounts upon death or incapacity, there are steps you can take. Even though the tech industry is currently resistant to allowing access to third parties, it is likely that the federal laws will be updated to allow access upon a death or incapacity. It therefore makes sense to include explicit instructions in your will or trust but you should not include private account information as wills are usually filed with the court (and it is possible a trust may be as well). Instead, keep your passwords in an encrypted password account or with your estate planning attorney. Your attorney must keep this information confidential and secure, but can provide it to your agent, personal representative, or trustee should something happen to you. Each account can then be addressed in light of the laws and the account's terms of service in effect at the time.