Our digital lives are increasingly an important consideration after our deaths. This is especially so for our social media accounts like Facebook and Twitter, which provide treasure troves of personal data about each individual user. Over 1 billion people and counting use social media sites and services. Facebook alone boasts 800 million users. Twitter claims 500 million. All of these users will die eventually. And then what?
There are virtually no laws contemplating the inheriting or use of a social media account after the user’s death.
Conceptually, the problem begins with who owns our social media accounts. Social media sites are run by companies who dictate their own terms of service. And it’s those companies, not us, who own our profiles. Even in Facebook’s case, although it does not explicitly claim ownership of the user’s account, Facebook does place limits on who can access the account, reserves the right to terminate the account for violations of its terms of service, and has a habit of creating “memorial” pages for deceased users which deactivate core features of the site. Clearly we do not have dominion over our Facebook accounts the way we do over other types of intangible personal property.
In spite of the ownership conundrum, we treat our Facebook and other social media accounts as though they’re ours. We use them to communicate, share our thoughts, and post family photos and videos. They provide a digital, chronological account of our lives and of our interactions with the world. They are this generation’s scrapbooks, and we have no ability to pass them on to our children.
Social media terms of service are a prime example of the law lagging behind technology. The concept of a social media site provider owning someone else’s personal thoughts, memories, and their entire digital persona, is flawed to begin with. But the social media problem is only compounded when so few states have laws even vaguely suited to address the concept of digital legacies in probate. Connecticut’s probate code has provisions for obtaining a decedent’s email, and Indiana imparts a duty to turn over electronic documents, but that language is too narrow. Only Oklahoma and Idaho extend to a personal representative in probate the right to “take control of, conduct, continue or terminate any accounts of the decedent on any social networking website, any microblogging or short message service website or any e-mail service website.”
While these two states have taken positive steps, probate codes may still be hindered by terms of service that limit rights after death and choice of venue and jurisdiction designations in the event of litigation. Thus federal regulation may be needed as well, given the unlikelihood of Facebook and others magnanimously changing their terms of service. From something as simple as requiring social media providers to allow for easy data exporting, or perhaps the more complex right to designate what happens to these accounts upon death, there are numerous better options than the current state of being.
State probate codes and federal laws need to catch up the new ways people communicate through social media services. Until then it’s kind of like keeping a diary when you don’t own the paper it’s written on.