What happens to your digital life after your real one ends?

My wife’s mother, Pat, passed away a few weeks ago after a long illness. This was the first death in my family of someone with an active social-media life.

Pat had 345 friends on Facebook (far more than me or her daughter, by the way), which was indicative of the life she led in real life. And as the week leading up to her funeral marched on, those far-flung friends visited her wall to pay their respects, trade stories, and organize the funeral. “Pat” even made an appearance, in the form of one of her friends with access to the account, to invite everyone to her own funeral.

We learned from this “Facebook séance” that her online life was not as legally protected as her other assets. Her will, which she drafted when she learned of her illness, had no provisions for online property. As it turns out, the laws and contracts that govern your online presence after death are still being written, and in many cases, it falls to outdated ones.

First, social networks. Each service’s Terms of Service is different, but they mainly agree on this point: With proof of death, they will shut down the person’s account. Facebook even provides a memorial feature, which locks down access to a person’s account, blocks that person from appearing in the friend suggestions, but still allows confirmed friends at the time of death to keep posting on the wall in perpetuity.

The other consideration is if the family or executor of the deceased wants access to protected data from a social network. Say a person had some password-protected blogs that may shed light into the person’s state of mind before their suicide, which was the case in this situation involving British model Sahar Daftary. The law governing these communications is ancient, the 1986 Stored Communications Act. It obviously did not foresee our online future.

Without going into a lot of jargon, the Act protects communications providers from having to provide protected communications after a person’s death. Civil lawsuits have no effect. The only exceptions are law-enforcement authorities with a warrant (if they are conducting an investigation involving the deceased) or if the deceased’s will specifically addresses online communication, which few do. Even Daftary’s mother – who was the executor of her estate – had no power in this situation, although her case fell more because of jurisdictional considerations than case law.

The Stored Communications Act also governs online email providers like Gmail and Yahoo! In other words, the rights of the deceased overrule those of the living in the eyes of service providers. They reason that if the deceased wanted loved ones to access their online accounts, they would have furnished those people with the sufficient passwords. So far, federal judges have agreed. In fact, under the SCA a family can get themselves into some criminal trouble if they try to crack their loved one’s passwords.

Federal laws that would better define the online rights of a deceased person are currently going through the judicial review process, but they are at least a few years away from taking effect.

Another new arena is what happens to our cloud-based data when we die. It can be reasonably assumed that your Dropbox contents, for example, would fall under the same provisions of the Stored Communications Act (and its eventual successor) as your email and blogs, but what about property that you willingly purchased and keep in the cloud, like your music?

Bruce Willis gained some attention recently for a rumor that he was contemplating a lawsuit against Apple for the right to leave his iTunes music to his daughters. As you may know, you do not “own” any music you download from iTunes or the other music services. You are simply granted a license to use it on approved devices. The lawsuit rumor was unfounded, but it made people think about the implications. He could leave his kids all of the iPhones and iPods he wants, but they would not be able to transfer the contents to other devices. Believe it or not, it’s like owning a book. You can leave your kids your library, but they can’t go and reprint “The Da Vinci Code” for their own uses.

The bottom line is that if you are serious about what happens to your online life after your death, make sure your wishes are expressly spelled out in your will and other estate-planning documents. If your attorney is not comfortable is this new legal arena, find one that is. Once your documents are in order, make sure your executor has a list of all of your current passwords (or leave them in a safe deposit box to be opened upon your death). If the executor has expressed written permission in the form of the will and access to the passwords, the Stored Communications Act makes provisions that allow that person to carry out your wishes without delay or penalty.

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