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Jean-Loup Richet: Digital Rights to Online Accounts After Death

September 2011 by Jean-Loup Richet, chercheur en cybercriminalité

The growth of the technological age has begun raising an issue that previous generations have not had to worry about - what happens to your email and Facebook account after you die? The question has created many complications for survivors who would like to access these accounts after a loved one has passed away. It hard to determine, legally, who owns the rights to these accounts, and many people are surprised to find that user agreements are automatically nullified. There are many unresolved questions on the issue, and the law is struggling to keep up with the evolution of cyberspace.

Issues surrounding who owns information placed on the internet are mired behind many different legal issues. For example, when photos are uploaded to a digital photo printing site, ownership of those photos in their online form is subject to a license. While the photos are still the property of the deceased, question remain about whether online information is considered property that has a distinct value. The question becomes even murkier in the case of money producing sites, such as personal blogs that include revenue producing advertisements.

One case that has drawn attention on a national level was that a US serviceman who was killed in Iraq. His family took Yahoo to court after being denied access to his email account, and the company maintaining that it could not transfer rights to the account or allow family members to access the member’s private information. Two states, Idaho and Oklahoma, have created legislation that attempts to address the problems of ownership of online accounts after death, but the legal field has largely failed to keep up.

Different online service providers have created their own methods to deal with the issue. For example, Google’s Gmail service may provide access to an “authorized representative” in certain cases, while Yahoo continues to deny access without a court order. On the other hand, Facebook allows survivors to establish a memorial page or remove the account all together. The problem for family members is that in most cases, while it is possible to gain access to accounts, it usually comes at a steep cost in terms of court and attorney fees.

Perhaps unsurprisingly, entrepreneurs have come up with a way for people to give their family members access to this information after death. Several services now offer a digital “safebox” for account information and even messages that should be sent to a family member in case of death. Other options include simply leaving written instructions to be given to family members in case of death, making it simply another part of estate planning similar to providing access to bank accounts and other asset information. However, many legal experts are now advising people against including information about digital assets in a will, as the document may become public record and open the door to identity theft and other issues.

There are no simple answers when it comes to ownership of online accounts. The best bet for most consumers is to simply spend a little time planning and deciding what will best suit their needs. As the internet continues to evolve, there is little doubt that more solutions will be available to customers. Until then, the issue leaves many questions that remain unanswered.


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