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What happens to our data after we die? Does it join us in the big cloud somewhere in the sky? Or do our relatives rifle through it, looking to resolve some long-standing family feud, like who mom loved best?
A German federal court recently ruled that heirs have the right to inherit digital correspondence from a deceased person, including minors. Such access is against the wishes of most social media companies, who promote first and third party privacy rights over the rights of relatives.
The facts of this case may be unique in that a 15-year-old girl was hit by a train, and the parents and insurance companies were trying to determine if it was a suicide. However, Facebook and their corporate frenemies would like to contain this precedent as much as possible, since they believe these accounts are used for personal exchange, and it is their duty to protect their client's privacy, even after they are deceased.
The U.S. has yet to make such a definitive ruling on digital inheritance. Absent a will, current estate law dictates that a court can decide who gets your physical and digital assets. In so doing, they will look to federal, state, and company policies to decide what to do on a case-by-case basis.
Here in the U.S., the federal Shared Communications Act is the only federal law addressing the issue, but to date, federal courts haven't applied this Act to social media accounts. Rather, it was intended to protect data at the Internet Service Provider (ISP) level. In a recent Massachusetts case, the state supreme court ruled that heirs of the deceased could have access to a deceased's Yahoo! email account to notify friends of his death as well as research assets left behind. Though Yahoo! petitioned SCOTUS for cert, claiming this violated the Shared Communications Act, SCOTUS denied cert, perhaps agreeing that Act doesn't apply here.
The Uniform Law Commission, which provides non-partisan legislation language for states, created the Revised Uniform Fiduciary Access to Digital Assets Act, which has been adopted by 28 states, gives executors complete access to a deceased's digital assets. States that have not opted in to this act are free to make their own legislation.
Each social media company has their own company policy on digital rights that users opt into when creating an account under their "terms of service". You know, that pesky box you check without reading. If your digital assets are sought after, your heirs will go to each individual social media company and ask for your assets. Social media companies will respond according to their policy. These policies, however, can be challenged, like they were in Germany, and, frankly, the penalty for violating these terms is not that great. You will have to wager on how bad your heirs want your data.
As of now, Google's Inactive Account Manager provides the best control over the post-mortem rights of your digital assets. But all of the other major social media companies have proverbial chinks in their privacy armor.
Having a digital will that protects your digital assets is as important and necessary as having one for your physical assets. If you die without one, know that almost everything in your cloud can be made available, if heirs press the company hard enough. If this prevents you from resting in peace, contact a local estate attorney to get a better understanding of your state's laws, and how you can create an estate plan that covers your physical and digital assets.
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.
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