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  • My Legal Briefcase

    Ever wonder what happens to your electronic files after you die? (Part II)
    Posted: 2012-07-26 05:00:38

    Yesterday, we posted an articling discussing what happens when you leave electronic information behind upon death. Email and social network providers usually make users sign a user agreement that guarantees privacy and restricted access to accounts. Typically, court orders will trump these user agreements. However, online companies tend to be cautious about granting access to a deceased user’s account because perhaps he/she never intended to turn over its contents. It would not be unreasonable to assume that many individuals would be uncomfortable with others reading their private emails even after they have passed on.

    The situation that the Stassens (see Part I) now face clearly demonstrates the differences between the physical and digital worlds, or, legally speaking, tangible vs. intangible. If Benjamin had left all of his private notes in a safety deposit box at the bank, the contents of said box would belong to whoever has control over his estate. The case is not so simple with respect to online content. Only a handful of jurisdictions in the United States have addressed these digital issues in their laws, while the majority have remained silent. However, the clarity and inclusiveness of the laws in those few states is questionable since they have not been challenged often and do not include all possible online accounts leaving a considerable amount of uncertainty.

    Although Facebook’s policy is that they do not allow access to a deceased user’s account, this is not deterring the Stassens. “We’ll be patient, but persistent”, said the family.

    Gmail’s privacy policies are nowhere near as strict as Facebook’s. A deceased’s next of kin will be permitted to access emails on their Gmail account provided that supporting documentation is given. A request that the account be deleted may also be honoured. Hotmail has a similar policy to that of Gmail in that they will also permit access.

    Yahoo’s privacy policies, on the other hand, mirror the strictness of Facebook. Yahoo will not grant access to a deceased’s account under any circumstances. Aside from allowing the account to be deleted, Yahoo offers very little leeway with respect to privacy.

    One potential solution to this uncertainty is creating a social media will. These wills detail exactly how you would want your online accounts managed after you die. Only time will tell if this is a realistic solution. In the meantime, however, there are no clear-cut solutions. As a result, parties currently involved in these situations will be forced to sit back and watch as court orders and user agreement contracts battle it out.

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