In death, Facebook photos could fade away forever
Proponents say the need is clear. Without clarity or direction, the digital information left behind by a deceased person can spark emotional legal battles, pitting big business against devastated families. And as more and more memories are being stored online, new tools are necessary to make sure loved ones can easily access personal details that could be lost forever.
“If this were a box of letters under his bed, no one would have thought twice,” Williams said.
Months after the death of her first-born son, who was away at college in Arizona, Williams found comfort in his Facebook page. There, she was able to click through photos and letters that helped ease the pain of her loss _ for two hours.
She learned of the page from his friends and wanted access to his memories to keep them from being deleted, which was Facebook’s policy at the time. Unaware of Internet privacy regulations, she reached out to Facebook for help. As she waited for a response, one of his friends provided a tip that helped her discover his password. “It was like a gift,” she said.
Shortly after, however, the site’s administrators changed the password, citing company policy in denying her. Williams sued and won, but she never received the full access she sought. Eventually, the account was taken down. In the end, she gained little more than a symbolic victory and a role as champion of a cause that didn’t exist before the digital age.
Kiesel, the former Oklahoma lawmaker, says the various attempts at legislation have sparked a long overdue conversation about estate planning for digital assets.
“I think that, because of the wide prevalence of online accounts and digital property, the federal government will ultimately need to pass some legislation that provides greater uniformity,” he said.
Congress, however, has no current plans to take up the matter. U.S. Sen. Mark Pryor, an Arkansas Democrat who heads the Senate Commerce Subcommittee on Communications and Technology, is not planning to introduce any digital assets proposals and has not heard any come up, his press secretary said. Also, a bill aimed at modernizing the Stored Communications Act failed in the House Judiciary Committee last year.
“This is not going to happen overnight,” said Greg Nojeim, of The Center for Democracy and Technology, a Washington-based non-profit, public policy group. He said changes to the Stored Communications Act were being discussed by industry groups, “but none that would help these families.”
Under current law, Internet companies that provide storage for digital assets are prohibited from disclosing account information, even to families, without a court order, which can be costly and difficult to obtain.
Even then, there are no guarantees. Facebook, for example, citing its terms of service agreement won’t provide access, even if a judge orders them to do so. Facebook will not comment on pending legislation or specific cases other than to defer to their service agreement, which states, in part, “We may access, preserve and share your information in response to a legal request (like a search warrant, court order or subpoena) if we have a good faith belief that the law requires us to do so.”
Along these lines, TechNet, one of several groups in opposition to the Oregon measure, provided written testimony arguing that legislation requiring online companies to provide access could subject them to federal criminal penalties.
“We just want to make sure that whatever comes out doesn’t put a company in a position where they have to choose between state and federal law,” said Hawley.
The pending Oregon legislation now covers only digital assets of commercial or financial value such as online banking information.
“It’s absolutely devastating,” Williams said.