Have you ever thought about your digital afterlife? As in, what happens to your online presence after you die?
The Oregon Legislature is addressing this issue next week because the issue is not as clear cut as you may think.
Seven years ago, Karen Williams lost her son, Loren, in a motorcycle accident in Arizona.
“It was just the phone call that every parent dreads,” recalled Williams, a Beaverton mother.
Loren was a 22-year old college student, who had something called a “Facebook” account. Remember, at that time Facebook was in its infancy and only on college campuses.
“It was how he presented himself to the world. It was how he saw himself,” said Williams, “and that was extremely valuable.”
Williams, who'd never seen a Facebook wall, wanted access to her son's page after his death, but the company said no. Only after a landmark court battle did she and her husband get a disk with partial messages and photos.
Fast forward 7 years and 955 million users, and families are still fighting Facebook for access to accounts of loved ones who've died, especially minor children.
Working to change the law
“The idea to me that an online provider could just delete that (account) or not allow grieving friends and family to have access to that just is abhorrent to me,” said Victoria Blachly, a Portland attorney. “There’s an assumption that whatever information you leave behind, someone that you trust will have the ability to access that information and do what you want done with it. That’s not the legal reality.”
Blachly has personal experience. Her family had difficulty accessing her young niece’s Facebook account after she died.
It's part of the reason why Blachly has drafted a new bill that would give a fiduciary – your chosen representative – access to your digital assets. Without the new law, families could be charged with a crime.
“Your personal representative uses the passwords to access online accounts. Is that legal?” asked Blachly. “In doing that, has that person committed a cybercrime by fraudulent misrepresentation of who they are? Under many state and federal laws, the answer is arguably, yes.”
Connecticut, Oklahoma, and Idaho have laws on the books that address the issue of digital assets in a limited way; other states, like Washington and California, have none.
Last week, a Virginia bill dealing with digital assets emerged from that state’s House and Senate committees, despite strong opposition from AOL and other big online providers. One of the bill’s most vocal proponents is Ricky Rash, a dairy farmer and father who has been fighting Facebook for access to his 15-year old son’s account after the boy committed suicide.
Oregon’s proposed law would be the most comprehensive in the country. It would apply to posts and photos on social media, your professional accounts, as well as your online banking and investments – basically, any account that you access with a password. It would define digital assets and put in place a process for assigning responsibility for those assets once you die.
“What the bill would do in Oregon is clarify that a fiduciary – which is a trustee of a trust, a conservator for an incapacitated person or the personal representative of an estate, that those fiduciaries have the right to access online accounts and information,” explained Blachly.
“Maybe there are secrets,” continued Blachly. “Maybe you have an online life you want to keep private, and you want to effectuate a digital death.” The bill would provide a means to do just that.
The KATU Problem Solvers reached out to online giants Facebook and Google. While declining to comment on the Oregon bill, the companies did reference the Stored Communications Act of 1986, an act written before most social media even existed. It guarantees privacy for email and other digital communications kept on the internet - private from even well-meaning family members.
Blachly believes online providers are hiding behind privacy rights and reading the law too narrowly.
“I don't think it's a privacy issue whatsoever because, particularly Facebook, has created this entire paradigm that you should live every moment of your entire life online, and so the idea that suddenly that information is going to be private when you pass, and the people that you leave behind, who should have the legal ability to access that, doesn't make any sense,” said Blachly.
“They take all the information that they can glean from you and use it for their financial benefit, so it's kind of talking on both sides of the fence,” said Williams.
Williams worries that families won't realize what they're losing until it's gone.
“So much of our lives – I call it our e-lives – takes place online. And it’s extremely important to a person and a family, and this might all disappear after a death,” she said.
The Oregon bill is scheduled for a hearing in front of the state Senate Judiciary Committee on February 11. | Read the draft version of the bill
If the bill becomes law, it would still be at odds with the federal Stored Communications Act. It’s likely that the law would then be challenged in court, and a judge would decide the issue.
In addition, the Uniform Law Commission is considering a national standard to be adopted by all 50 states, but the group is two or three years away from drafting any legislation.
While lawmakers, lawyers, and online providers argue about the future of your digital assets, how can you protect yourself?
The KATU Problem Solvers recommend the following:
- Create a VAIL - a virtual assets instruction letter.
- Keep the VAIL in a safe or safety deposit box where you store other important documents. Don’t include it in your will, because your will is a public document.
- List all your online accounts and their passwords on a flash drive and lock it up, too.
- Give your fiduciary, the person you're putting in charge of your digital assets, the password to the flash drive.
- Remember to update the drive as you change your passwords.
To learn out how different online providers handle your accounts after you die, we assembled links to several popular sites: