The Electronic Communications Privacy Act of 1986 (“ECPA”) prohibits disclosure of stored communications without a court order. This includes instant messages, emails, and communications on Facebook. The issues that can arise from such a standard came to light in 2005, when Loren Williams died in a motorcycle accident in Arizona, and his mother attempted to access his Facebook account in the hopes of feeling closer to her son. However, according to the ECPA, Loren’s mother did not have the authority to access her son’s Facebook account. Loren’s mother eventually sued Facebook in 2007 and a court granted an order allowing her to access his Facebook account. Facebook has revised its policy, allowing relatives to report a death online, at which time, Facebook allows restricted access to an account for friends and relatives.
However, Facebook was merely abiding by the terms and conditions that Loren had agreed to when he signed up for his Facebook account. Under these terms, the “assets” that fell under the license agreement become subject to licensing rules. Accordingly, a license expires when the license owner dies. The rights to that license and those assets do not automatically transfer to the next of kin or to the decedent’s estate upon death. Many states throughout America are in the midst of considering legislation that would allow access to online accounts after death. However, any law in this field is still in its early stages.
In light of these legal circumstances, family members file lawsuits against email servers to gain access to emails after the owner of the account dies. In some cases, the courts have allowed the servers to release the emails as raw data to family members, but courts rarely allow access to accounts. To avoid costly litigation in order to gain access to such accounts, individuals could begin incorporating social media account access and the respective passwords in their wills. Alternatively, individuals could create accounts under a trust to ensure that other members of the trust can access the account in the event that one member passes away. This issue is especially impactful in light of all the other tasks that people are able to conduct online. For example, many people manage their banking online by and through the bank’s website.
Digital estate planning is especially important for Internet-based companies. Although, the law has not kept up with this growth in technology, it is nonetheless important for online companies to notify their attorney of the important digital assets. The company may also store the relevant information and asset list on a thumb drive. Regardless of the means of securing the assets that the company finds most suitable for its needs, it is important to leave instructions for these assets in the case of death.
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