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Wednesday, Jan 16, 2019
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Bill would protect ‘digital assets’ after death

Maybe you’ve written a will to make sure, among other things, a particular relative gets the antique porcelain tea set your grandmother handed down to you.

But what about all the photos in your Instagram account? The 10,000 or so messages you saved in Gmail? The collection of musings you saved as “notes” in Facebook?

A bill now in the Florida Legislature would ensure that such “digital assets,” including online banking and investment accounts, can be controlled by someone who will protect them after death.

The aim is to ensure someone can gather monetary assets, like online brokerage accounts, that may have to be passed on but can also preserve posts and pictures from social media pages and make sure they’re not defaced.

The measure already is being questioned, however, by social media behemoth Facebook and two senators known for their experience in emerging technologies.

Nonetheless, the bill’s sponsor — a wills and estates attorney — said it’s vital for people to bequeath someone control of their online legacy.

If someone dies with a will, that person is a “personal representative,” or executor. For those who die without a will, a judge will name someone.

“This bill sets out clearly that you are in charge” and that your representative “stands in your shoes” after your death, said state Sen. Dorothy Hukill, a Port Orange Republican.

Her bill (SB 102) defines digital assets as “electronic communications and records such as emails, text messages, online photographs, documents stored on the cloud, electronic bank statements, and other electronic communications or records.”

“We all have a digital footprint, and it’s increasing ever rapidly and among all ages,” Hukill said. A companion measure (HB 313) is in the House.

Since 2005, nine states have enacted laws that allow for some level of control of digital assets after death, according to the National Conference of State Legislatures.

The first state law, in Connecticut, covers only access to email. Others, such as a 2014 Delaware law, are broader, allowing for “access and control (of) digital assets and digital accounts.”

Online services are starting to take notice.

Facebook recently introduced a “Legacy Contact” feature that allows users to select another Facebook friend who can look after an account postmortem.

The legacy contact can “write a pinned post … to share a final message on your behalf or provide information about a memorial service,” respond to new friend requests and update your profile picture, according to the service.

That person cannot “remove or change past posts, photos and other things shared on your Timeline, read messages you’ve sent to other friends, or remove any of your friends.”

Hukill said that move actually justifies the need for her bill.

“They’re still in control; they decided what those options are — not you,” she said. “They can change it at will. And it requires the other person to be on Facebook.

“Under my bill, you’re in charge,” she added, saying that otherwise users are at the mercy of providers.

A Facebook spokesman referred questions to Jim Halpert, general counsel of the State Privacy and Security Coalition, to which Facebook belongs. Other members include Amazon, Comcast and Google.

“The question is whether the bill goes a little too far,” Halpert said, mentioning it may conflict with federal law that protects online privacy and content. “State law can’t change that (and) maneuvers to get around federal law are not appropriate.”

Hukill’s proposal is a reworking of a “model law” on the issue. Legal think tanks, in this case the nonpartisan Uniform Law Commission, develop them for consideration by state lawmakers.

Hukill’s bill allows the personal representative — and only that person — to gain access to online accounts without fear of breaking any privacy or other laws, according to analysis of the bill by legislative staff.

The measure cleared the Senate Judiciary committee earlier this month despite opposition from Sen. Jeremy Ring, a Margate Democrat and former Yahoo executive.

Also voting “no” was Sen. Jeff Brandes, a St. Petersburg Republican who supports technologies like Uber, an app-based ride-sharing service, and driverless cars.

Ring couldn’t be reached last week, but he raised confidentiality concerns, using the example of psychologists who may have left behind email exchanges between patients. He also mentioned student and medical records.

Naomi Cahn, a law professor at George Washington University in Washington, D.C., said any duty of confidentiality that a digital provider has to the dead person also applies to his or her executor.

“This is no different than the pre-digital world, where we all had paper copies,” she said. “The personal representative … is bound by the same confidentiality. There’s no authority to release that information.”

Even if the person finds love letters, “it’s no different,” Cahn said. “There are requirements of loyalty, of protection. The law doesn’t say that just anybody gets access. There are protections built in.”

Brandes raises another concern.

“I think the majority of people think their digital assets die with them,” he said. The bill “basically is saying that even if you wish your accounts not be accessed after you die, they can be.”

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