Stranger Than Fiction
There is a very popular British anthology series called Black Mirror which is now available on Netflix, and it explores and discusses the ways in which technology is changing the very social fabric of our lives, usually in a menacing and terrifying way. There is one episode in particular called Be Right Back in which the protagonist loses her husband in a tragic car accident and learns of a new service that allows people to stay in touch with deceased loved ones through their social media that had us thinking.
Granted, the show itself is a modern-day take on the Twilight Zone, and usually portrays a society in the far-off future who have abused technology and each installment shows the subsequent disastrous results. Each story taps into the collective unease about the modern world in which we live and the sometimes-horrifying issues that present themselves in regards to an ever-growing civilization that resides online. While Black Mirror is purely fictional, and the episode Be Right Back is nowhere near present day, it does beg the question: what happens to our social media presence when we die?
Our lives have become increasingly immortalized through our use of the internet and social media, and one of the major obstacles for fiduciaries and family members of a deceased person is the federal Stored Communications Act. For hundreds of years humans have had their ways of passing on and granting access to their physical belongings and assets. A new era is upon us though, and so many people keep intangible objects online. What happens to the contents of electronic communications and files once an individual has died? The Stored Communications Act creates privacy rights to protect said contents from disclosure by certain online user account service providers. If the Act applies, the service provider is prohibited from disclosing information in the online account to the fiduciaries unless an exception to the Act is met. In short, your family cannot access your social media accounts and emails unless you have provided express, written consent for them to do so. The in-house attorneys for the likes of Facebook, Google, and Yahoo! have adamantly insisted they will not turn over the contents of a deceased user's online accounts unless the user previously provided written consent.
However, it seems only logical that the personal representatives of a deceased individual can and should gain legal access through lawful consent on behalf of the departed user. Having to battle Facebook for your loved one's messages on top of the many other responsibilities usually placed on the shoulders of a fiduciary seems like a nightmarish saga right out of the Twilight Zone. In a much less fantastic sense, like the show Black Mirror, we are exploring uncharted waters concerning how technology and the internet impacts our lives, and our deaths. As recently as October of 2017, the Supreme Judicial Court of Massachusetts saw the first ever case in the country, Ajemian v. Yahoo!, to answer the specific question of whether the personal representative of a deceased individual may grant lawful consent on behalf of the deceased individual, for purposes of the federal Stored Communications Act. The court's opinion states, " We conclude that the personal representatives may provide lawful consent on the descendant's behalf to release the contents of the Yahoo email account." However, as the court's opinion points out, even though the lawful consent exception under the Act can be met by a personal representative, that alone does not require the service provider to divulge the contents of a departed user's electronic communications. The Act states that they may provide the contents if an exception is met, and that is where state laws such as the Revised Uniform Fiduciary Access to Digital Act comes into play. This Act provides clear state law procedures for fiduciaries to follow in order to request access to or disclosure of online accounts and digital assets.
For now, it appears the easiest way around all of this is to plan ahead and provide written consent so that your family members can gain access to your social media accounts and emails upon your passing. The state of Ohio actually adopted a version of the Uniform Fiduciary Access to Digitial Act last April, and Layman D'Atri and Associates, LLC has incorporated the power to deal with digital assets in our Powers of Attorney, Will and Trusts. It doesn't just entail your family being able to read over your private messages sent on Facebook, but also having access to your email where you may have paid bills, received important documents electronically as well as numerous other significant electronic papers and contracts. For now, we will let television shows ruminate on our future as a society heavily dependent on technology and the internet, and we will worry only about what we can do now to make your end-of-life planning easier, therefor making it easier too, on your family members and fiduciaries. It's an interesting time for estate planning, and even more fascinating still, to see where new laws go regarding the social media footprint we leave behind. For more updates like this, and any other questions you may have about estate planning, call us at Layman, D'Atri and Associates, LLC, 330-493-8833.