At the risk
of veering into exceptionally morbid territory, it’s time to have some real
talk about social media accounts after a person’s death. One consequence of
having a digital presence is that a person’s online profiles will continue to
exist after that person’s death. This, unfortunately, creates a problem for
companies that host such profiles: should they allow other people access to or
control of those accounts?
Facebook’s approach has been to restrict access to the profiles. In a recent Washington Post article, the author described one family’s experience after their teenage son unexpectedly committed suicide. The parents of Eric Rash, grieving, asked Facebook for permission to view their son’s account in order to better understand what had happened. Facebook’s response was that they could not view their son’s profile until his estate was settled. This is because Facebook is concerned about complying with state and federal privacy laws, which bar third-party access to user accounts. Of course, this puts Facebook in an awkward position — how can they balance the need to be sensitive to grieving parents, while still complying with privacy laws?
Recently, lawmakers in fifteen different states have put forward bills which would allow parents access to their minor children’s digital property after the minor’s death. Similar legislation has already been enacted in five states: Connecticut, Idaho, Oklahoma, Rhode Island, and Indiana. While these bills do not seem to be of exceptionally high priority in all states (Nebraska’s bill, for example, has been indefinitely postponed), the sheer number of states that are considering such legislation indicates a widespread shift in thought as to how online profiles should be managed.
It is important to note that the implications of such legislation may be broader than simply allowing family members control over their loved ones’ accounts. In September of 2012, a California district court granted a motion to quash a subpoena to release a woman’s Facebook account to her family members. The woman had died of an apparent suicide, but her family was disputing that conclusion; they had attempted to gain access to her Facebook for state-of-mind evidence. The court concluded that while Facebook was permitted to allow the woman’s family access to her account, it was not required to do so. The implications of this decision for the woman’s family, of course, are enormous — their ability to take action depends on Facebook’s privacy policies. For the sake of families like this woman’s, I personally hope states will continue to push for legislation that will allow posthumous access to accounts.
This is a really interesting topic. When I was at the ABA's Communications Law conference a few weeks ago, an attorney I was sitting with at lunch was discussing how this issue was affecting how her firm was advising clients. She was saying attorneys in estate planning are beginning to advise clients to include information in their wills or other documents a directive as to who can access social media accounts and what you want done with the account should you pass away.
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