Who stands to in­herit emails or a selfie?

States seek to fill pri­vacy law gaps

Daily Local News (West Chester, PA) - - BUSINESS - By Ivan Moreno

SPRING­FIELD, ILL. >> When a loved one dies, laws cover how their houses, cars, and other prop­erty are passed on to rel­a­tives. But the rules are murkier — and cur­rently far more re­stric­tive — when it comes to pic­tures on Face­book, emails to friends or rel­a­tives and even fi­nan­cial records stored in on­line cloud ac­counts.

Google, Face­book and other com­pa­nies have said a fed­eral pri­vacy law ap­proved decades be­fore dig­i­tal stor­age be­came com­mon pre­vents them from re­leas­ing elec­tronic mem­o­ries or records un­less the ac­count owner grants per­mis­sion — even if the per­son is dead. With­out an es­tate plan, fam­i­lies must try to crack their loved one’s pass­words or take the costly step of lit­i­gat­ing the mat­ter to ac­cess pho­tos and emails — and some have, with lit­tle suc­cess.

The laws gov­ern­ing how to di­vide be­long­ings af­ter some­one dies have not caught up with the tech­no­log­i­cal ad­vances that have per­me­ated the ways peo­ple com­mu­ni­cate, but states have be­gun try­ing to bridge that gap. This year, Illinois was one of 19 states that passed sim­i­lar laws to clar­ify what in­ter­net com­pa­nies can re­lease af­ter some­one dies and when in­for­ma­tion should re­main in­ac­ces­si­ble.

“I post quite a bit on Face­book. I post a lot of pho­tos. If some­thing were to hap­pen to me, maybe my wife would like to have ac­cess to those pho­tos,” said Rep. Emanuel Chris Welch, a state leg­is­la­tor from sub­ur­ban Chicago who spon­sored Illinois’ mea­sure on the topic.

With the new laws, un­less a per­son ex­presses other­wise, com­pa­nies will re­lease ba­sic in­for­ma­tion from a user, such as the per­son’s email con­tact list, to help find friends or gather an in­ven­tory of a per­son’s as­sets. But to get the ac­tual con­tents of the emails — even the sub­ject lines — or pho­tos and doc­u­ments stored in a cloud service, peo­ple must proac­tively spec­ify who they want to have their dig­i­tal be­long­ings.

The fed­eral Elec­tronic Com­mu­ni­ca­tions Pri­vacy Act, passed in 1986, doesn’t an­tic­i­pate the re­lease of on­line in­for­ma­tion when ex­e­cut­ing wills. Be­cause pro­bate law is typ­i­cally left to the states, the laws leg­is­la­tures are pass­ing could ef­fec­tively set new rules.

The Chicago-based Uni­form Law Com­mis­sion wrote the leg­is­la­tion states are pass­ing with the sup­port of in­ter­net compa-

nies, but that wasn’t al­ways the case. Ini­tially, the com­mis­sion wanted ad­min­is­tra­tors of a per­son’s es­tate to have ac­cess to ev­ery­thing from users’ ac­counts in cases where some­one did not leave in­struc­tions about what to do with their dig­i­tal as­sets.

Only one state, Delaware, man­aged to pass that ver­sion of the com­mis­sion’s pro­posal, but 27 leg­is­la­tures tried and failed in 2014.

Carl Sz­abo, se­nior pol­icy coun­sel at NetChoice, an in­dus­try group that rep­re­sents the in­ter­ests of such com­pa­nies as Face­book, Google and PayPal, said the re­vised leg­is­la­tion “balances the needs of the be­reaved with the pri­vacy in­ter­ests of the ac­count hold­ers and the peo­ple with whom they cor­re­sponded.”

West Vir­ginia, Utah, and Iowa are among the dozen other states that have drafted bills seek­ing to join the 19 that

en­acted laws.

Face­book al­lows users to choose a “legacy con­tact” to ac­cess their ac­count, and Gmail has an “ac­count trustee” op­tion. In in­stances where peo­ple use those op­tions, the com­pa­nies’ agree­ments with them will su­per­sede the state laws.

Even with the new laws, plan­ning is nec­es­sary at a time when many still don’t think about the con­tents of their in­ter­net ac­counts as prop­erty.

“This is one of those many ex­am­ples where the law re­ally gets its power by giv­ing peo­ple the knowl­edge that it ex­ists,” said Wash­ing­ton state Sen. Jamie Ped­er­son, the spon­sor of the law passed there this year.

The prom­ise of pri­vacy com­pa­nies of­fer users has led to heartache and frus­tra­tion for the fam­i­lies of ac­count hold­ers who have had to go to court for the right to ac­cess their rel­a­tive’s emails and pho­tos.

In 2005, Ya­hoo turned over more than 10,000 pages of emails in a CD to the fam­ily of Lance Cpl. Justin Ellsworth, a marine from Michi­gan whose

fam­ily went to court for the ma­te­rial. But oth­ers have not been suc­cess­ful.

The fam­ily of John Aje­main in Mas­sachusetts has been un­able to get his emails from Ya­hoo af­ter his death in 2006. And in 2012, Face­book quashed a sub­poena from the fam­ily of Sa­har Daf­tary, a model who fell to her death from an apart­ment build­ing in Manch­ester, Eng­land, in 2008.

In Vir­ginia, af­ter Ricky Rash’s 15-year-old son, Eric, killed him­self in 2011, Face­book pro­vided a CD with the con­tents of his ac­count but not his pass­word. Rash still strug­gles with the no­tion that for decades peo­ple have stum­bled upon me­men­tos while clean­ing out a late par­ents’ home, but in the dig­i­tal age those keep­sakes can be out of reach.

“What is the dif­fer­ence of the shoe­box full of let­ters and pic­tures un­der the bed or in the at­tic?” Ricky Rash asked. “You go in as a child tak­ing care of your par­ents’ es­tate, you may find some­thing in those mem­oirs that sur­prises you.”


Illinois Rep. Emanuel Chris Welch, D-Westch­ester, speaks to law­mak­ers May 25 at the Capi­tol in Spring­field, Ill.

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