By Jacob Gershman
As policy makers wrestle with how to handle the digital remains
people leave behind on sites like Google and Facebook after they
die, a new state law expanding access to the deceased's accounts
could set a national trend.
Delaware Gov. Jack Markell this month signed a bill that gives
estate attorneys and other fiduciaries more control of their
deceased clients' digital data, including email, social media and
cloud storage data.
The law, which takes a novel approach, deals with the sensitive
issue of what to do when people are outlived by their email and
social-media accounts, sometimes to the dismay of loved ones who
lack access. It extends that access to executors authorized to
carry out the instructions of a person's will. The executor can
then transfer email and other data to a family member, but isn't
required to.
The statute could conflict with a 1986 federal law forbidding
consumer electronic-communications companies from disclosing
digital content without its owner's consent or a government order,
said Jim Halpert, a DLA Piper partner and general counsel of the
State Privacy and Security Coalition, which includes Google and
Facebook.
About 10 states have considered versions of the Delaware
legislation, said Mr. Halpert, whose coalition opposed the
bill.
The executor of an estate already has access to letters that
belonged to the deceased. The bill, though, removes hurdles an
estate attorney or other fiduciary may encounter when they want to
search through emails and deal with old debts or accounts that need
to be closed.
Mr. Halpert said an email archive might contain sensitive
information the deceased might not have wanted disclosed.
Facebook declined to comment on Wednesday. A spokesperson for
Google didn't have an immediate comment. Google already lets users
decide if they want their accounts transferred or deleted if they
become inactive for an extended period.
Earlier this summer, the Uniform Law Commission, a group
appointed by state governments to draft and lobby for new state
laws, approved a "Uniform Fiduciary Access to Digital Assets Act,"
upon which the Delaware law is modeled.
"As we conduct more of our professional and personal business
online, we must also change our laws to match the reality of how
people live in the 21st Century," Mr. Markell said. "This
legislation will help our laws keep pace with changing technology
and forms of communication."
Write to Jacob Gershman at jacob.gershman@wsj.com
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