Death and Digital Privacy: Please Delete My Browser History, Bro
Privacy has been a concern for internet users since the days of dial-up and AOL. Browsing histories, search histories, and other personal data have been at risk from hacks and corporate overlords for years, but does that only extend to the living? While there is a new trend for social media sites and other internet services to allow users to designate successors for their accounts, your best buddy might not be willing or able to fulfill your last dying wish of deleting your search history, Gmail, hard drive, or browser history before your mother sees it. Unless your friend knows your passwords or has serious hacking skills, they aren't going to be able to delete your browsing history or any other embarrassing bits of digital debris that you've left all over the net.
The good news is that if you haven't left instructions outside a locked account (such as a Google Chrome profile or a password-protected social media account) or a protected hard drive, it is unlikely anyone else will be able to access your data after you pass away. That includes friends, family, law enforcement, or any other non-hackers.
What Rights Do Relatives Have?
The laws regarding information technology and personal data privacy after death have been heavily litigated in the context of tort law, where famous deceased personalities become the subject of movies, books and other products meant for sale or publication. Generally, courts must balance the fact that a deceased person cannot enforce legal rights (you know, because of the whole "being dead" thing) with the fact that a surviving relative may have a privacy interest of their own (or may own the rights to publicity, which can survive after death). For instance, when a movie is made about a deceased person, the decedent's surviving spouse would have an interest in their own portrayal in the movie, but not necessarily that of their deceased spouse.
Even though decedents are generally considered not to have legal rights, the law nevertheless still provides some level of confidentiality for their personal data found in web browsers, hard drives, and operating systems. For example, in a wrongful death case, certain medical records of a deceased person can be ruled undiscoverable and inadmissible on privacy grounds.
In cases where family members request access to online social media, email accounts, or other password-protected data, the service providers (e.g., Facebook) in question typically deny full access. However, they may be willing to supply digital hard copies of the files they have on their servers.
Delaware and Illinois Are Leading by Example
Illinois and Delaware have recently passed laws on how to handle the IP address, personal data, and online accounts of the deceased.
In Delaware's case, the new law allows the executor of the deceased person's estate access to all of their online accounts—but only if they didn't leave any specific instructions on how to manage their personal data after their death. Illinois' new law operates similarly.
If a person dies in Illinois without leaving any specific instructions behind, relevant service providers should release basic information (like the deceased's contact lists) so notifications can be sent and assets more easily identified. Anyone who wants more information will have to complete the same lengthy process currently in place in all other states.
Generally, for family members to get more access to the deceased's personal data, they will need to provide each service provider with significant additional information. The required information varies between service providers, but usually includes a death certificate and personally identifying information. Each individual service provider may require other information based on their own standards before they'll release any personal data.
- Privacy in the Workplace: Overview (FindLaw's Learn About the Law)
- Invasion of Privacy: Public Disclosure of Private Facts (FindLaw's Learn About the Law)
- FTC Online Behavioral Advertising Privacy Principles Unplugged (FindLaw's Legal Technology)
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
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.