Mass. survivors clamor for access to email, social media
Published 7:30 am Friday, March 11, 2016
- Mass. survivors clamor for access to email, social media
BOSTON — Social media and email accounts connect people across the miles and years, bring distant relatives into the minute of each other’s daily business and, for good or bad, linger long after people die.
Who should have access to these digital lives left behind?
In Massachusetts, a surviving spouse or individual with a power of attorney isn’t currently allowed to access the many of the online accounts of someone who has passed away.
Someone’s digital assets — email, Facebook and online bill-paying accounts — all can be locked when they die.
Some lawmakers want to allow people to designate a custodian to access and manage digital accounts when they die or become incapacitated. A bill would require service providers to turn over passwords and other electronic information to that custodian within 60 days of a request.
“It would bring estate planning into the 21st century,” said Sen. Cynthia Creem, D-Newton, the bill’s main sponsor in the Senate. “This is really no different than the executor of a will being able to go through the papers of the deceased.”
The proposal was inspired by a family whose son had passed away and that was unable to get into his email.
“They wanted to notify his friends that he had passed away, and felt that this was wrong,” Creem said.
But the proposal isn’t so straightforward, say Internet service providers who oppose it for fear that it will force them to violate privacy guarantees or possibly draw them into court battles among family members over custody of a deceased’s digital records.
To allow such access, representatives of tech companies say they first need to ask subscribers for permission.
“People don’t want to have to think about their own mortality every time they download a new app or sign up for a new online service, and companies shouldn’t be forced to make users confront their own mortality,” said Matt Mincieli, Northeast region executive director for TechNet, which represents technology companies.
“A retailer is not required to ask whether you want to change your will when you buy a new pair of pants or a lamp,” he said.
Most online services will freeze or turn off accounts of people who’ve died, but that’s different from allowing others access to those accounts.
The tech industry favors legislation, drafted by the nonprofit Uniform Law Commission, granting access to a personal representative if specified by someone in a will, trust, power of attorney or other legal record.
Under that model, those granted access would only be able to see limited communications — such as the company holding the account and time stamp — but not the contents of emails and instant messages.
“We want to protect our users’ privacy because that’s what they expect, and it’s a promise we intend to keep,” said Carl Szabo, an attorney with NetChoice, a trade association of Internet companies that includes AOL, Facebook and Google.
To date at least three states — Florida, Wyoming and Virginia — have approved the legislation supported by the tech industry.
At least a dozen other states are considering similar proposals.
No such legislation has been filed in Massachusetts.
More than 70 percent of Americans believe their online communications and photos should remain private after they’re dead — unless they’ve given prior permission for others to access those records, according to a 2015 poll by NetChoice.
Federal law prohibits access to an individual’s digital assets, living or dead, without specific authorization.
Some e-mail providers, such as America Online, allow next-of-kin to access e-mail accounts by submitting documents that prove the relationship, such as marriage certificates, as well as a copy of the death certificate.
Others have strict policies about releasing information — even when faced with lawsuits from a decedent’s loved ones.
Yahoo’s terms of service prohibit the company from disclosing private e-mail communication.
It will turn over an account only to family members who’ve gone through the courts to verify their identity and relationship to the deceased.
“To protect the privacy of your loved one, it is our policy to honor the initial agreement that they made with us, even in the event of their passing,” the California-based company states in its terms of service. “Unfortunately, Yahoo cannot provide passwords or allow access to the deceased’s account, including account content such as email.”
In 2005, the company went to court to challenge a request by the father of Justin Ellsworth, a Marine from Michigan killed in action in Iraq, who wanted access to his son’s emails.
A judge eventually ordered the company to release them.
Yahoo has more than 81 million email users in the United States, according to its website.
In 2013, Google rolled out an Interactive Account Manager feature, allowing users of its free Gmail service and social media accounts to share pre-selected content with trusted contacts, such as spouses and loved ones in the event that one passes away.
Facebook allows users to appoint a “legacy contact” who can respond to friend requests or update profile pictures after they die, but cannot see private messages or reset passwords.
The company can also deactivate a dead person’s account.
Estate lawyers say those planning for their digital afterlife have other, more straightforward options.
Brendan Ward, a Lynn-based estate attorney, said he advises clients who are setting up wills to subscribe to a digital password service that will store login and password information for bank accounts, email and other electronic records.
“So, if anything did happen, someone could easily get access those records,” he said.
David E. Peterson, an estate attorney based in Danvers, said an easier way is to write down login information and passwords, then exchange that information with your spouse, significant other or attorney.
Simply giving permission to access your electronic records likely won’t cut it.
“You can’t necessarily rely on the language in a will,” he said. “If you want to be covered, you should make a list.”
Christian M. Wade covers the Massachusetts Statehouse for CNHI’s newspapers and websites. Reach him at cwade@cnhi.com.