When people die, what should happen to their digital assets — documents and photos that they have stored in the cloud (Google Drive or iCloud), the sent and received messages resident in their email accounts, more evanescent records like instant messages and Snapchat stories?
The first answer is: Whatever the dying person wished. But what if they expressed no wish? That is where it gets complicated and there are bills pending before the legislature which give different answers to the question.
As more and more businesses seek to eliminate paper bills and statements, many of us use our email account as the primary storage location for our records. Additionally, our email account may be the means through which we can recover lost passwords for online bank, insurance and other accounts.
Similarly, many of us keep our most cherished photos in online accounts. Those in creative or scientific fields may create many of their significant works online.
In the days of paper records, the executor of a will (or perhaps family members in the same home) would freely gain access to whatever a decedent had left in the drawer — whether it was bank statements or ancient love letters. Now that so many assets are in digital form and reside on password protected cloud storage, there is a conflict of views as to the powers of the executor of an estate.
Cloud and internet service providers save money if they can avoid handling any matters manually and avoid having to make complex decisions that are dependent on varying state laws. They also legitimately want to avoid getting drawn in to litigation of any kind.
Major industry players have come together to urge the passage of a uniform law that may place too much emphasis on the fine print that none of us read when we open our accounts and the optional account settings that most of us don’t get around to checking.
All agree that the preferences of the decedent should be honored. The industry bill would mandate that preferences expressed through their systems would control, but might concede that a later wish expressed in a will should control. The most challenging question is what to do, when as is all too common, the decedent did not get around to expressing any preference.
The industry has done polling that purports to show that most Americans feel that in absence of an expressed preference the digital assets should remain private, but it seems to matter how you ask the question. Most people disagree with the following proposition that the industry’s pollsters framed to emphasize personal privacy:
Estate attorneys and executors should control my private communications and photos even if I didn’t give prior consent.
Yet, on the contrary, in a poll sent to my email list to which over 1000 people responded, 60% selected a position that is roughly equivalent:
If someone dies without sharing their password and without expressing any preference, email companies should give the heirs access to the contents of the dead person’s email account.
Granted that my email list is self-selected. Yet I am not sure why my list would be unrepresentative on this issue — I was frankly expecting to confirm the industry result. I also ran the same poll on facebook (paying for distribution beyond the universe of people that like my page) and got a response consistent with my email poll.
I think the main conclusion we can draw from the contradictory polling is that polling is not a good way to figure out the best approach to this issue. There are many possible intermediate solutions — I got a lot of good feedback from people who didn’t feel comfortable with the forced choice I presented.
Under basic common law principles, the duly-appointed executor of an estate stands fully in the shoes of the decedent and has the established power to make many very sensitive and private decisions on behalf of the decedent. Emails are not generally more sensitive than health care and therapy records. Our Supreme Judicial Court has found that the executor has the power to make lawful consent and receive email contents if the decedent did not express a contrary wish.
But that finding by the court does not bind the legislature to adopt that rule. Some intermediate options for handling the case where the decedent made no directive include:
The industry’s advocacy materials overemphasize user privacy and industry convenience to the detriment of administrative practicality for users, yet the proposed uniform law is a thoughtful well-developed approach. It may strike a reasonable balance by (1) allowing communications envelope access to executors, while protecting communications content (in the absence of express consent); and (2) generally allowing executor access to digital assets other than communications.
We may take some more time to consider the issue — our final legislative decision should perhaps await a Supreme Court decision on how far the states should have the authority to regulate on the issue.
I’d welcome your thoughts as comments here!
I went back to the 1100 people who had voted on the previous question of whether heirs should have access to email communications to test a compromise option — instead of giving content to the heirs, just give them a catalog of the content. 464 people responded to the follow up, 298 who had originally favored disclosure and 166 who had originally opposed disclosure.
Among the 64% of second-round respondents who had originally felt that heirs should have access to emails, 75% disagreed with the proposition:
generally, it would be enough to give heirs access to a catalogue of the email content, showing all the people and institutions that the dead person had corresponded with and the subject and dates of the correspondence.
Among the 35% of second-round respondents who had originally felt that heirs should not have emails, 51% disagreed with the parallel proposition that:
it would be OK to allow the heirs access to a catalogue of the email content, showing all the people and institutions that the dead person had corresponded with and the subject and dates of the correspondence
In other words, unfortunately, the industry-proposed compromise of offering access to a catalog of emails but not content does not satisfy a majority of either group. Overall, the compromise approach is less popular than either of the original black-and-white options, meeting expectations for only 34% of respondents.
This post explores a policy issue without reaching a clear conclusion and I’m still looking for input.
But for individuals, there is a clear conclusion: Make plans for your digital assets. Put it in your will what you want done. Or, make appropriate elections in settings for your digital accounts.
Please don’t hesitate to contact us directly for assistance!