What happens to your digital life when you die?
In many states, the answer likely depends on the terms of agreement and privacy policies of digital asset custodians, such as Facebook or Google.
Depending on what those terms spell out, it could be easy or difficult for loved ones to access records like photos and bitcoins.
In the last several years, however, the Uniform Law Commission has been pushing legislation to govern their disclosure if a user passed away, and this year, Arizona, along with more than a dozen states, adopted a similar measure.
With more and more Americans having an online presence, how to access digital assets after someone passes away has taken a more urgent tone in the last few years.
Known as the Revised Uniform Fiduciary Access to Digital Assets Act, Arizona’s new law outlines how a family member or authorized representative could access a deceased person’s digital assets.
Under HB2467, there are two broad ways to govern digital assets: proactively or through a default system. In the first case, the account’s owner designates a person and directs an internet company, for example, to disclose digital assets to the designee by using what’s referred to as an online tool.
If the account owner did not make a designation through the online tool, a default system kicks in, under which the user, through a will, trust, power of attorney or any other record, allows disclosure of digital assets, including the content of electronic communication.
Alexis Glascock, an attorney with Fennemore Craig, said Arizona is among the first states to adopt the digital access law.
“It’s a problem throughout the country,” she said, adding complaints had been raised in other states against Facebook and Yahoo on this issue.
“When [people] passed away, they couldn’t pass on this [digital] property, which could be bitcoins, photos, work products, and information related to their businesses. All of that was completely tied up,” she added.
Among the more prominent cases involving access (or the lack thereof) to digital assets involved a Virginia family whose son committed suicide in 2011.
Looking to understand the tragedy, the family turned to the son’s Facebook page, only to find that the internet giant had blocked access to his account until his estate was settled, citing state and federal privacy laws, according to a Washington Post story.
The Post said Facebook and other internet companies were in a conundrum.
“These are tragic situations and Facebook always tries to be as helpful to families as possible while still complying with federal and state law,” a Facebook spokesman said at the time.
In 2015, Facebook updated its policy to allow users to pick a “legacy contact,” who can manage their accounts if they passed away. A legacy contact may write a post for the deceased person’s profile, respond to new friend requests, and update the profile photo. However, the legacy contact may not log into the account, remove or change posts, or read messages sent to friends.
However, the search engine giant says its primary duty is to keep its users’ information “secure, safe, and private” and won’t provide passwords or login details.