VOL. 37 | NO. 9 | Friday, March 01, 2013
In death, Facebook photos could fade away forever
BEAVERTON, Ore. (AP) — A grieving Oregon mother who battled Facebook for full access to her deceased son's account has been pushing for years for something that would prevent others from losing photos, messages and other memories — as she did.
"Everybody's going to face this kind of a situation at some point in their lives," says Karen Williams, whose 22-year-old son died in a 2005 motorcycle accident.
The Oregon Legislature responded and took up the cause recently with a proposal that would have made it easier for loved ones to access the "digital assets" of the deceased, only to be turned back by pressure from the tech industry, which argued that both a 1986 federal law and voluntary terms of service agreements prohibit companies from sharing a person's information — even if such a request were included in a last will and testament.
Lobbyists agree the Stored Communications Act is woefully out of date but say that until it's changed, laws passed at the state level could be unconstitutional.
"Everybody wants to do the right thing, but the hard legal reality is the federal communications act," said Jim Hawley, a vice president at TechNet, an industry group that represents companies such as Google and Microsoft.
Oregon lawmakers moved ahead anyway with a proposal that would have given "digital assets" — everything from photos and messages stored online to intellectual property and banking information — the same treatment as material property for estate purposes.
"I think it's time for us to really look at what we can do now," said Democratic Sen. Floyd Prozanski after hearing Williams testify about her loss last month.
Two weeks later, however, language in the bill that would have covered social media accounts, from Facebook to Flikr, was stripped as tech lobbyists said the federal law and company privacy policies trumped anything that the bill would have included.
"I recognize the emotional toll these types of decisions can have on a family who's lost a loved one," Prozanski said Thursday. "But some of these issues may have to be addressed when we have more information than we currently have."
Still, the problem persists and discussions on the issue are gaining momentum. As unlikely as such a case might be, even if a person willingly gives over login and password information to someone whom they authorize to access a given digital account, it would violate most terms of service agreements and both people could be charged with cybercrimes and face civil action from Internet companies under current law.
Currently, five states have digital assets laws, which vary widely. This group includes Oklahoma, which passed a law two years ago allowing estate lawyers to access digital assets, even social media accounts. That measure did not face the opposition that has emerged in Oregon.
"There is some question if laws like the one we passed in Oklahoma, would stand up to a challenge by Facebook and Gmail saying their terms of service agreements supersede laws like this one and the one being discussed in Oregon," said Ryan Kiesel, a former Oklahoma legislator who wrote the law.
"That's a question that remains to be answered," he added.
Several other states, including Nebraska — guided in part by the story of Williams' 22-year-old son, Loren — are also considering proposals. And the Uniform Law Commission, a non-profit, non-partisan group that writes model legislation for states to help standardize laws around the nation, is examining the issue.
"This law is a real need as we have moved into a digital world," said Lane Shetterly, an Oregon attorney and a representative on the commission's drafting committee. The group is responsible for standardizing a range of legislation, including commercial transaction regulations and child custody laws.
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.
Since she began her quiet crusade after her 2007 court victory yielded limited, temporary access to her son's account, the social media landscape has changed considerably, but there is still no industry standard. Where Facebook once deleted the accounts of deceased users, for example, pages can now be memorialized for public view.
Many predict the problem will grow as long as there are no estate laws in place to determine what happens to virtual property left behind by the deceased.
Without a clear law, estate managers can be charged with cybercrimes for attempting to access clients' digital accounts, said Victoria Blachly, a Portland attorney who helped draft the initial Oregon proposal.
Estate planning attorney James Lamm writes about the issue on his blog "Digital Passing." He advises clients to include explicit instructions in their wills stating exactly how digital assets should be handled — even if there is no guarantee those wishes will be carried out.
"It's good to come up with a thoughtful plan for what happens to all of your property," he said. "Your physical properties, and your digital properties."