Should Your Digital Assets Be Treated Like Your Physical Assets Once You Die?
Thursday 18 September 2014 @ 12.50 p.m. | Legal Research
This year, the American state of Delaware passed the “Fiduciary Access to Digital Assets and Digital Accounts Act”. The legislation followed a model proposed earlier by the Uniform Law Commission, and means that Delaware residents’ digital assets will be treated as if they were physical assets – left behind for heirs and executors.
Companies like Facebook, Google, Yahoo and Dropbox must give control of the assets of a deceased person to the executor of their estate, unless the person has specified otherwise. Delaware Governor Jack Markell said that the legislation “will help our laws keep pace with changing technology and forms of communication”, but the move has been a controversial one.
Digital Assets in Australia
What happens to your online accounts when you die? In Australia, where our laws don’t specifically regulate digital assets, it probably depends on company policies. The Sydney Morning Herald reported:
“Facebook, for example, will "memorialise" accounts by allowing already confirmed friends to continue to view photos and old posts. Google, which runs Gmail, YouTube and Picasa Web Albums, offers its own version: If a person doesn't log on after a while, their accounts can be deleted or shared with a designated person. Yahoo users agree when signing up that their account expires when they do.”
People who’ve planned ahead to give loved ones their password may still run into hurdles. Wills are public records, so leaving a password in your will might not be secure. The Sydney Morning Herald also pointed out that even if someone else does know your password:
“most company's "terms of service" agreements prohibit anyone from accessing an account that isn't theirs. That means loved ones technically become criminals if they log on to a dead person's account.”
There have been a number of cases in the United States where people have sought court orders to access deceased loved one’s Facebook accounts – a 2005 case in Michigan saw Yahoo ordered to release the assets of a Marine killed in Iraq, and there have also been similar cases resulting from the death of a 22 year old in a motorcycle accident and a 20 year old who committed suicide.
But privacy advocates disagree with moves to make digital access for relatives an opt-out procedure. Ginger McCall from the Electronic Privacy Information Center in Washington, told the Sydney Morning Herald that approval from the courts or a judge should be necessary, both to protect the privacy of the owners of the accounts as well as the people they communicate with:
“No one would keep 10 years of every communication they ever had with dozens or even hundreds of other people under their bed… The digital world is a different world".
Yahoo has spoken out strongly against the Delaware law, saying not only does it violate their terms of service, “it presumes the deceased would even want his or her digital communications to be handed over” and “doesn’t offer the right approach to providing a family or fiduciary the information they need”, according to an article on ComputerWorld.
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