When it comes to dealing with the digital detritus of the dead, there isn't exactly a standard operating procedure. How to treat the online footprints of the deceased is something companies like Facebook, Twitter and Google are only just beginning to consider. But California legislators want to pass a law regulating what companies may do with our digital records after we expire and go to the big Cloud in the sky.
Other states have at times kicked around the idea of legislating our digital life after death, but California is the first state close to passing a law. On Tuesday, the state Senate Judiciary Committee approved a piece of legislation called the Revised Uniform Fiduciary Access to Digital Assets Act, which would set guidelines for when and how companies may share our emails, instant messages and other digital records after we pass.
Two previous versions of digital assets legislation failed to get the committee's approval. This new version, though, garnered bipartisan support from the legislative committee most likely to knock it down, giving it a good chance of passing. And if it passes, California could very well set a national precedent.
The new legislation sets up a system to determine who has access to our digital relics, and when. It prioritizes directions the deceased gave to the sites for handling their digital remains. (Google lets you plan for death with its “inactive account manager,” while Facebook lets you decide whether your account should be deleted or memorialized after death.) Then it looks at what someone said in their will. But if someone dies without a will or any discussion of their digital desires in their will, it reverts the decision-making to a site's terms of service.
From the bill:
The bill would authorize a person to use an online tool to give directions to the custodian of his or her digital assets regarding the disclosure of those assets. The bill would specify that, if a person has not used an online tool to give that direction, he or she may give direction regarding the disclosure of digital assets in a will, trust, power of attorney, or other record. The bill would require a custodian of the digital assets to comply with a fiduciary’s request for disclosure of digital assets or to terminate an account, except under certain circumstances, including when the decedent has prohibited this disclosure using the online tool. The bill would make custodians immune from liability for an act or omission done in good faith in compliance with these provisions.
Many a frustrated parent has asked for a deceased child's messages and been turned away—which is part of what inspired this bill. Most tech companies refuse to hand over control of a user's account or any of their private messages unless the user explicitly said they wanted that done before their death. So those parents will likely remain frustrated.
But privacy advocates like the ACLU are still opposed to the retooled bill.
"Is it possible that they might make mistakes both by releasing too much information or releasing it to the wrong person?" said Kevin Baker, legislative director for the ACLU of Northern California, told The Recorder. "We think the history of the treatment of digital records shows that there likely will be mistakes."
That's despite the fact that previous versions of the bill were criticized for valuing the privacy of the deceased over a family's wishes.
Evan Carroll, co-author of the book "Your Digital Afterlife," told the San Jose Mercury News last year that we should expect our right to online privacy to expire after we die. Restricting access to a person's online accounts after they die without prior consent, he said, "goes against the way estate law has worked for a long time."
Carroll's point is that when we die, our relatives are tasked with going through our material possessions—no matter how embarrassing—deciding what to purge and what to keep as mementos of our lives. So why, he wonders, are our digital possessions any different?
Carroll told me that he supports the new version.
"I believe it's an excellent compromise," he said, "that protects the privacy of personal communications while still allowing heirs to access most digital property of financial value."
Whether the bill passes or not, one thing is clear: if you want to retain control of your image in the afterlife, best plan your online funeral yourself.