Of Digital Legacies and Changes to Facebook’s Memorial Pages

I must preemptively refer you to John Gregory’s post from last year when it comes to canvassing the laws, and lack thereof, around how third party services (like Google, Facebook, PayPal, etc.) are obliged to act upon the death of an account holder. The whole legal terrain is fascinating, and consists of a stewing heap of conflicting rationales, policies, privacy legislation and common laws around the rights of heirs, deceased people, states and private corporations. It’s all heading in a better direction, probably, with the advent of uniform legislation like FADA, but for some time it has been quite a mess.

The question many have posed but no one can singularly answer is “what happens to the digital assets of a deceased person?” Does the data pass as a downloadable archive to the estate? Does a representative gain access in the place of the deceased owner or account holder? Is the information wiped? Or shall it sit on a server indefinitely with no one permitted to gain access?

Well, it really depends on the service. And that seems like mean comfort to many.

“For many, Facebook has become a highly accessible (even mobile) vehicle for grieving and, ultimately, catharsis.”

Increasingly, especially with social media accounts that maintain a passive presence regardless of when a post was made, we see around us the digital ghosts of departed friends and family. Two years ago there was an interesting article discussing stories of “Facebook After Death” featuring anecdotes around a phenomenon which is only increasing—inexorable as death is (and now too our habits using social media). The article says, “As of 2012, 30 million people who maintained Facebook accounts have died, according to a report by The Huffington Post. Some studies approximate that nearly 3 million users have died in 2012 alone; 580,000 in the U.S.”

Someone even did a trendy infographic on the macabre topic:

Click for full image.

 

The digital graveyard is only more crowded, with some idle genius calculating that the dead will outnumber the living on Facebook by 2065, if Facebook stops growing. Google established an Inactive Account Manager in mid-2013, but it has taken some time for Facebook to wade in and offer expanded controls beyond mere memorialization (which was introduced in 2009).

The news this past week, however, is that Facebook now lets you choose who will control your Facebook account through a proxy called a “Legacy Contact“. It’s not activated in Canada yet, but one may expect that could change.

Previously Facebook converted user account pages to “memorial” pages if someone close to the deceased reported the death to Facebook, and doing this removes many capabilities from the account. No curator was left with any ability to actually use the account. It remained a one-way exchange.

Now, according to sites like Mashable and Lifehacker (OK, CBC has this story too) this is changing. From Mashable:

“The feature, called legacy contact, appears in Facebook’s security settings menu. There, you can select a specific Facebook friend who will be able to control certain aspects of your page, like your profile and header image, after you die. Alternatively, users can opt to have their account deleted after they pass away.”

Samantha Collier has also posted a personal story in connection with this news.

The Lifehacker article I linked to also has a link to an interesting post about creating a “in-case-of-emergency” kit for your data.

Comments

  1. It is definitely weird to see ghosts of loved ones floating around on facebook… or when they pop up as potential new friends for you to add, but you know they’re deceased.

    It makes sense that facebook and other social media sites set up a way for people to deal with their site assets. I’m pretty sure my facebook account is worth more than anything else I own! Now to find a power or attorney for all of my web presence.

  2. My concern about the Facebook initiative is that it seems to ignore the fact that many deceased members will have personal representatives with legal duties and powers to deal with ALL the assets of the deceased, including digital assets.

    I think the law is clear that the deceased’s assets under current law include digital assets. The reason for legislation in the US, as mentioned by Nate, and for possible legislation in Canada (the Uniform Law Conference of Canada now has a working group on the topic), is to set out clearly for everyone’s use – account holders and online service providers – the rules on such matters.

    Facebook’s new policy does not make clear room for the personal representative. Is the intention that the ‘friend’ appointed under FB’s policy displaces the personal representative? Does this make sense? It is clear enough that a person can appoint separate personal representatives for different assets, but will the ‘friend’ know about or want to take on the legal duties that the status as personal representative carries in just about any legal system?

    I hope that this initiative is not an attempt by Facebook to avoid the application of FADA-based statutes on fiduciaries’ access to digital assets. More charitably, it may be seen as an attempt to resolve the many jurisdictional questions that might arise in – the many legal regimes that might apply to – its global operations. But is it satisfactory anyway?

    I note that Google has established an inactive account manager function that can deal with post-decease powers. This too was set up after the FADA discussions began in the US, no doubt as a response to formal consideration of the legal implications of the death of members. I don’t know if the relation between the Google function and the duties of personal representatives is problematic.

    I am sure that the ULCC working group would be interested to hear of experiences with digital assets after death, with Facebook, Google or others. The group is chaired by Donna Molzan of Alberta Justice, but communications could be addressed through me as well.

  3. a bit more detail on the FB policy is in this note by James Lamm, who was one of the initiators of the US FADA project and who has been thinking about this topic for some years.

  4. Hi John, I’d be interested to know if the ULCC working group has compiled a bibliography of current reading on the topic. From this year alone, in order of most recent, I’m going to pick through a few of these to better understand the big picture:

    Digital Afterlife/It’s Not Just Dust to Dust and Ashes to Ashes Anymore, The
    NWLawyer
    Latta, Trent
    68 NWLawyer 33 (2014)

    Probate Law Meets the Digital Age
    Vanderbilt Law Review
    Cahn, Naomi
    67 Vand. L. Rev. 1697 (2014)

    Inherit the Cloud: The Role of Private Contracts in Distributing or Deleting Digital Assets at Death
    Fordham Law Review
    Banta, Natalie M.
    83 Fordham L. Rev. 799 (2014)

    Night of the Living Data: Estates Law and the Phenomenon of Digital Life after Death
    Rutgers Business Law Review
    Kinealy, Siobhan
    11 Rutgers Bus. L.J. 35 (2014)

    Digital Properties and Death: What Will Your Heirs Have Access to after You Die
    Buffalo Law Review
    Watkins, Ashley F.
    62 Buff. L. Rev. 193 (2014)

    Relationship between Digital Assets and Their Transference at Death: It’s Complicated, The
    Loyola Journal of Public Interest Law
    Ferrante, Rachael E.
    15 Loy. J. Pub. Int. L. 37 (2013-2014)

    Protecting Post-Mortem Privacy: Reconsidering the Privacy Interests of the Deceased in a Digital World
    Cardozo Arts & Entertainment Law Journal
    Edwards, Lilian;Harbina, Edina
    32 Cardozo Arts & Ent. L.J. 83 (2013-2014)

    Tweets from the Grave: Social Media Life after Death
    Kentucky Law Journal
    Hollon, Jason R.
    102 Ky. L.J. 1031 (2013-2014)

    Your Digital Footprint Left behind at Death: An Illustration of Technology Leaving the Law Behind
    Louisiana Law Review
    Varnado, Sandi S.
    74 La. L. Rev. 719 (2013-2014)

    Laying Your Online Self to Rest: Evaluating the Uniform Fiduciary Access to Digital Assets Act
    University of Miami Law Review
    Haworth, Samantha D.
    68 U. Miami L. Rev. 535 (2013-2014)

    Coming Soon to a Legislature Near You: Comprehensive State Law Governing Fiduciary Access to Digital Assets
    Charleston Law Review
    Walsh, Suzanne B.
    8 Charleston L. Rev. 429 (2013-2014)

    Digital Death Conundrum: How Federal and State Laws Prevent Fiduciaries from Managing Digital Property, The
    University of Miami Law Review
    Lamm, James D.;Kunz, Christina L.;Riehl, Damien A.;Rademacher, Peter John
    68 U. Miami L. Rev. 385 (2013-2014)

  5. Thanks, Nate. that’s useful. I suspect before looking at the articles that a lot of them are inspired by the work of the Uniform Law Commission on FADA, so there is a fair bit of overlap and a fair bit of material we already know. But it’s always worth checking. The final article cited was written primarily by two people who attended the ULC drafting committee meetings and who circulated the article at its final meeting (including Jim Lamm, whose blog I mention above.).

  6. And the articles keep coming: seven more in last year alone

    The Stored Communications Act and digital assets. Horton David. Vanderbilt Law Review. 67.6 (Nov. 2014) p1729.
    Digital planning. Naomi R. Cahn and Amy Ziettlow. Probate & Property. 28.3 (May-June 2014) p22.
    Surf the evolving web of laws affecting digital assets. William Bissett and David Kauffman. Estate Planning. 41.4 (Apr. 2014) p32-35.
    Covering your digital assets: why the Stored Communications Act stands in the way of digital inheritance. Matt Borden. Ohio State Law Journal. 75.2 (Apr. 2014) p405-446.
    Your digital footprint left behind at death: an illustration of technology leaving the law behind. Sandi S. Varnado. Louisiana Law Review. 74.3 (Spring 2014) p719-775.
    Estate planning with digital assets – where are we now?. Mark R. Parthemer, Jaclyn G. Feffer, and Sasha A. Klein. Journal of Financial Service Professionals. 68.2 (Mar. 2014) p19-21.
    Digital properties and death: what will your heirs have access to after you die?. Ashley F. Watkins. Buffalo Law Review. 62.1 (Jan. 2014) p193-235.

  7. Do any of them add anything to what a reader of UFADAA, including the official comments, and the Lamm article (he’s the leading person in the US on the topic, in my view), say? The working papers and drafts for UFADAA are also online.