Tuesday, March 11th, 2014
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Facebook’s policy for memorializing a deceased user’s account has changed. No longer will a memorialized account have its visibility restricted to only friends of the deceased user. Instead, Facebook will preserve the same privacy and visibility settings that the deceased user had specified during lifetime. Also announced in the news release is the ability to request a “Look Back” movie for a deceased user’s account. Only a friend can make the request for a “Look Back” movie for a deceased user, and this request must be made after the deceased user’s Facebook account has been memorialized.
Most Terms of Service agreements for online accounts do not specify what happens when a user is incapacitated or after a user is deceased. Thus family members and the fiduciaries acting on behalf of the user face delays and obstacles in trying to access the user’s online accounts and other digital property. They may not have the user’s password. Or perhaps they cannot use the password because it violates the account’s Terms of Service, which potentially could be prosecuted under state or federal criminal laws including the Computer Fraud and Abuse Act. Or, maybe the fiduciary has requested a copy of the contents of the deceased user’s online account, but the account provider is not able to divulge the contents without the lawful consent of the user because of the privacy protections under the federal Stored Communications Act. These are significant problems facing family members and fiduciaries when dealing with an incapacitated or deceased user’s online accounts and digital property.
Facebook’s Terms of Service agreement does not permit anyone to log into another user’s account, not even a deceased user’s account. Also note that Facebook will not reset or reveal the password of a deceased user’s account.
Hopefully someday users will be able to easily designate one or more beneficiaries or agents who could receive a copy of all (or a specified portion) of the user’s account contents after the user has died. This is an area of law that is likely to see many changes in the next few years. Stay tuned.