Previously, Facebook allowed one of two options for a deceased user’s account. First, the personal representative of a deceased person’s estate (also known as an executor) or an immediate family member could ask Facebook to remove a deceased user’s account and account contents from Facebook. Second, an immediate family member (a spouse, parent, sibling, or child), an extended family member (a grandparent, aunt, uncle, or cousin), or even a non-family member (a friend, co-worker, or classmate) could ask Facebook instead to “memorialize” a deceased user’s account, which locks the account and restricts other people from viewing the deceased user’s profile and other contents unless that other person was a “friend” of the deceased user on Facebook. Please note that Facebook’s Terms of Service agreement does not permit anyone to log into another user’s account, not even a deceased user’s account. Also, note that Facebook will not reset or reveal the password of a deceased user’s account.
The February 21, 2014, news release states that Facebook’s policy for “memorializing” a deceased user’s account has now changed. No longer will a memorialized account have its visibility restricted to only “friends” of the deceased user. Instead, Facebook will preserve the same privacy and visibility settings that the deceased user had specified during lifetime. For example, a user’s Facebook contents that were restricted so that only “friends” could view them would continue to be restricted after the user dies (once the account is memorialized), but a user’s Facebook contents that were visible to everyone would continue to be visible to everyone after the user dies (once the account is memorialized). The February 21, 2014, news release does not mention any changes to the procedure for removing a deceased user’s account and account contents from Facebook.
An additional change announced in the February 21, 2014, news release is the ability to request a “Look Back” movie for a deceased user’s Facebook account. Only a “friend” can make the request for a “Look Back” movie for a deceased user, and this request must be made after the deceased user’s Facebook account has been memorialized. More information about Facebook “Look Back” movies is available in this February 4, 2014, article from The Verge.
It’s great to see that Facebook is being respectful of and responsive to the issues related to a deceased user’s online account and account contents. Each year, more of our personal and business lives are moving into the digital world of computers, online accounts, and electronic storage, and some of this data has financial value or sentimental value to family members after the user becomes incapacitated or dies.
The vast majority of Terms of Service agreements that I’ve read for online accounts do not specify what happens while a user is incapacitated or after a user is deceased. As a result, family members and the duly-appointed fiduciaries acting on behalf of the user face confusion, delays, and obstacles related to the user’s online accounts and other digital property. Maybe they don’t have the user’s password. Maybe they do have the user’s password but can’t use it for fear of “exceeding authorized access” in violation the account’s Terms of Service agreement, which potentially could be prosecuted under state or federal criminal laws including the Computer Fraud and Abuse Act. Or, maybe the duly-appointed fiduciary has requested a copy of the contents of the deceased user’s online account, but the account provider is not able to divulge the contents without the “lawful consent” of the user because of the privacy protections under the federal Stored Communications Act. These are significant obstacles facing family members, fiduciaries, and their team of advisers when dealing with an incapacitated or deceased user’s online accounts and digital property.
My hope is that it will someday be best practices for Terms of Service agreements of online accounts to: (1) clearly authorize a duly-appointed fiduciary to access to a user’s online account during lifetime or after death for purposes of state and federal criminal laws including the Computer Fraud and Abuse Act; (2) clearly confirm that the user is providing “lawful consent” within the meaning of the federal Stored Communications Act to divulge the user’s online account contents to a duly-appointed fiduciary; and (3) clearly state what happens to the user’s account itself and the user’s account contents after death.
It also would be helpful if a user could easily designate one or more “beneficiaries” who could receive a copy of all (or a specified portion) of the user’s account contents after the user has died. Please note that the I mentioned “a copy” of the account contents—I’m drawing a distinction between making “a copy” of the data versus the legal issues that may be involved in transferring rights or ownership interests in the user’s account itself or transferring rights or ownership interests in the user’s data. See my earlier blog post about Google’s “inactive account manager,” which provides a similar “beneficiary designation” to transfer a copy of the account contents to designated people.
This is an emerging area of law, and I’m hopeful that the confusion, delays, and obstacles facing family members and fiduciaries dealing with the incapacity or death of a loved one can be resolved by better clarification and more consistency in Terms of Service agreements.