Proposed law would clarify who gets access to a deceased person’s digital accounts

When Facebook turned 10 recently, many users were amused by the “Look Back” videos that compiled the highlights of their life on the social media network. But one father, John Berlin, couldn’t watch the video he most wanted to see – that of his deceased son, Jesse. Facebook hadn’t enabled the videos for “memorialized” accounts, profiles with modified settings when a user dies. So Berlin

“>posted a video on YouTube pleading with Facebook to make him Jesse’s video.

In response, Facebook now takes requests for “Look Back” videos of users who have passed away. The company also modified the administration of memorial accounts to honor the original visibility settings of the deceased’s profile. Both of these changes are yet another example of how technology companies are writing the rules as they go in the largely unfamiliar territory of managing one’s digital life after death.

In a previous post, we outlined the legal landscape evolving alongside technology companies’ policies. The crux of the matter concerns who should be granted access to digital accounts once someone dies. So far, companies have largely maintained control by default, to the chagrin of many family members who feel entitled to access accounts, especially when the deceased is a minor. But the balance may soon swing in families’ favor if a new legal proposal gains traction.

The Uniform Law Commission, a body of lawyers who produce uniform legislation for states to adopt, recently drafted the “Fiduciary Access to Digital Assets Act (FADA).” It would grant fiduciaries (a catch-all term for the various types of people who can be legally appointed to hold assets) broad authority to access and control digital assets and accounts.

FADA is considered by many attorneys to be an improvement over existing law because it would clarify and expand who can access a deceased person’s online accounts. The proposal would create four categories of fiduciaries who would be able to take over these accounts in the event of a death: a personal representative of a deceased person’s estate; someone carrying out a power-of-attorney; a trustee of a trust; or someone appointed by a court to act on behalf of a protected person. Existing laws typically only apply to personal representatives.

The Commission will vote on the proposed law in July. But two issues still remain. The first revolves around “media neutrality,” the idea that the treatment of assets should be the same regardless of whether they are digital or physical. The proposal would require certain fiduciaries to obtain access to digital assets, while it would be automatic for others.

The final draft would treat all fiduciaries alike and grant authority over digital assets in the same ways authority is assumed over physical assets. This has been a legal gray area. Supporters of media neutrality argue that these changes would also keep the law flexible and adaptive as technology evolves.

The second issue concerns terms-of-service agreements, the lengthy text people often click through (but don’t read) before signing up for a service like Gmail or iTunes.

The latest proposal would allow a fiduciary to “stand in the shoes of” the account holder. But websites may not want to maintain accounts of the deceased either for storage purposes or to avoid any legal responsibility altogether. Some are worried that websites will try to circumvent the prospective law by requiring users to sacrifice their fiduciary’s future access and control. Further, there is concern that if websites preemptively shut down accounts of deceased users, fiduciaries will not be able to execute their legal duty. Language to prevent such loopholes is included in the final draft.

Many estate lawyers and other internet experts hope that once the model law is published, states will widely adopt it. Seven states have already enacted their own laws, and another fourteen have proposed legislation dealing with these issues.

There is quite a bit of variation among existing state laws. For instance, some laws and proposed legislation only apply to minors. The existing laws often differ over what kinds of accounts are covered (email, social networking, blogs, etc) while some have adopted blanket language that the law is meant to cover all “digital accounts/assets.”