What happens to your digital life when you die?
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:
Shellie Bailey-Shah advises to create a VAIL - a virtual assets instruction letter. Good idea, but with one problem. Your loved ones might not be able to bring themselves to did through your stuff (even a safe deposit box) for many months/a year after your death. By then, your accounts might have been deleted due to inactivity. I know. I've been there.
And this is just another reason not to frequent or use social media sites like Facebook, Myspace, Linkedin and others. It is fertile ground for ID 'phishing' expeditions, trolls preying upon peoples emotions, etc.
 @theobserver Yeah, live your life in fear! Surely Facebook will ruin everyone's life!
I keep getting facebook recommendations to add someone as a friend who died last year. Â The "do you know this person? Add them as a friend!" Â So every day when I log in to facebook, I am reminded of her death. It's awesome (not).
 @nerdbyrd Sorry to hear that.  I have a set number of "friends" I won't go over, and that number includes family.  And anyone who bores me (and fills my 'home' page with recipes and anti-this or anti-that stuff) gets quietly unfriended,  It's all such a joke.......but I'm addicted to Words With Friends.  aarrgghh.
Speaking from personal experience..
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When a long time friend committed suicide her sister was able to gain access to her FB account after proving proof of death.
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After that the account was locked and hidden from searches. Current "friends" still have access to the account and it is in what could be described as a "memorial" account. Friends can still post on her wall, but nothing else can be changed. If someone decides to "un-friend" her, they will never be able to regain access to the account.
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another problem is when you die and you have auto payments, until your bank account is empty, those accounts will still pay out unless you left a list for the executor of the estate so a death certificate can stop the payments on your behalf.
a simple thing one can do is put a sealed envelope addressed to the one you want to know any information you want them to find out marked "in the event of my death open" you can leave what ever information you want your loved ones to have such as your accounts and passwords, your computer password to let them get pictures off while keeping your other secrets under raps with a different password. that makes it a personal choice not a court ordered invasion.
As long as you leave it out where they can find it!
If the deceased was involved in criminal activity or murdered, then any info that may lead to an arrest should be available to the authorities. Â As far as family and friends wanting access, I would think that if the deceased wanted them to see their information, it would have already been made available to them. Â Sounds like some people are just being nosy. Â But, welcome to the digital age where people seem to want everyone to know every move they make. Â Not too bright and when something negative happens they want to blame someone other than the one responsible.
Since when is someone's death carblanche to go through all of their personal stuff? There is no need for people to go through private messages/emails after someone dies unless it is part of a court case.
Families ALWAYS should go through ones "stuff" after death!! You must have a dysfunctional family!
your rights to privacy usually ends when deceased.
All the stuff going on and this is what the Oregon lawmakers are doing..........
OMIGOSH, I was just thinking about this at lunch time today.
For some people, access to another's digital life (social networks, 'secret' email accounts, texts, blah, blah) after they've died could have some very negative results. Â The whole "I will love you until death do us part" will rapidly become, "You dirty rotten cheating filthy-mouthed lying w***e/p***k". Â I, of course, don't know anyone in such a situation, but it could happen.
 @Sundowner choose your person whom you want to have access to this info wisely and there will be no regrets
 @Sundowner So I would want the choice myself to deal with the good or the bad rather then letting some Bean Counter attorney at FB or Twitter etc make it for me.
 @FreedomRocks For the sake of others, it would be best for "some of us" to be cremated with our hard drives and cell phones clutched to our cold, dying hands.  Or so I've heard.
How can Facebook or other social media keep something private when the individual posting everything there made it public in the first place? And how do they know the poster died anyway? I had the same issues when my daughter committed suicide. I wanted to have everything on Facebook to try to understand what led her to make that decision, if at all possible.
 @jpk My sympathies. Very sad.  I hope you were able to gain the insight ( or some anyway) you were seeking re: the reasons for her death in that manner.
Thank you, and I did!
 @jpk I'm very sorry for your loss.  No parent should have to go through something like that, and while I can't empathize, as a mother/grandmother I wish you the very best in sorting things out.
 @jpk Very sorry to hear about your loss I can't imagine how hard that would be to deal with. Wanting to know the how/why would be so important to allow you to move on with your own life and possible help others.
You mean you can't take it with you? When you are deleted from the living, you can't delete yourself digitally also? Â
 @jpk I smell a "jpk" movie!