Del. — When Donna Johnson’s father died suddenly of
a massive heart attack, her mother tried to get access
to his email account and digital photo repository. She
wanted to pay bills and make sure that treasured family
photos remained intact.
though she was executor of his will, his widow was
stunned to learn that in her state — as in many others
— she had no legal right to access his online
caused a lot of emotional wear and tear on my mother.
The whole situation was extremely traumatic, and this
was just one more thing she had to deal with," said
Johnson, 43, who is executive director of the Delaware
State Board of Education.
eventually reached out to a state legislator she knew,
and last month, the Delaware Legislature passed a bill
that would grant executors and other fiduciaries access
to a dead person’s digital information. It is awaiting
action by Democratic Gov. Jack Markell.
the bill is signed into law, Delaware would join at
least eight other states in enacting legislation dealing
with digital assets.
laws run the gamut from requiring Internet providers to
give an executor access to all contents of a dead person’s
email to granting the personal representative of someone
who dies the power to terminate his social media
accounts. At least 10 other states considered digital
assets legislation this year.
is one of those issues where the law has not kept up
with these new technologies and accounts that have been
created," said Pam Greenberg, a senior fellow at
the National Conference of State Legislatures. "I’m
sure we’ll see additional legislation in this
a growing number of states are passing digital estate
laws, many in the tech industry have been fighting back,
citing concerns about privacy and liability.
for some of the nation’s largest tech companies tried
to kill the Delaware bill, which deems digital assets
such as email, social media, photos and financial
management accounts part of a person’s estate upon
death. Executors or trustees would be given the same
control over those assets as they have with physical
assets, such as safety deposit boxes and stock
certificates, unless the person stipulates in his will
that he does not want that information released or gives
other specific instructions.
of people who become incapacitated also could gain
access to digital assets, but they would need a court
the Delaware measure becomes law, it would supersede any
"terms of service" agreements that users have
with Internet and social media providers. However, if a
person specifies in a separate online tool, such as
Google’s "inactive account manager" that he
wants emails deleted or transferred to a particular
person after a period of inactivity, that would take
put in provisions that prohibit the tech companies from
making the choice for you. They can’t, in their
service agreement, say that upon your death, we’re
going to delete your account," said Democratic
state Rep. Darryl Scott, who co-sponsored the
legislation and worked with the state’s bar
association to get it passed. "We were trying to
restore control to the family to make those decisions,
just as they do with many other things, like journals
and letters and safety deposit boxes."
bill is similar to a model law endorsed last week by the
Uniform Law Commission, a nonprofit organization of
lawyers, including legislators and judges, appointed by
each state government. The group researches and drafts
standardized state laws that can then be considered by
Orzeske, the commission’s legislative counsel, said
the group spent two years working on the digital assets
proposal, and he thinks it will be introduced in about a
dozen states next year. "This law isn’t changing
the level of privacy," Orzeske said. "It’s
just making it media neutral, whether it’s on paper or
some in the technology industry warn that the model law
and the Delaware bill remove users’ privacy
happens to digital accounts when you die is an issue of
great concern to our members because they are the
custodians. They are concerned about creating a safe and
secure environment for our users," said Carl Szabo,
policy counsel for NetChoice, a trade association whose
members include AOL, Yahoo, Facebook and Google.
providers also worry about liability, especially if an
email contains information about a third party.
somebody died who’s a drug counselor or psychiatrist
or doctor, they’re likely to have a lot of stuff in
their email from patients, which is quite
confidential," said Jim Halpert, an attorney for
DLA Piper who represents a coalition of 21 technology
and media companies. "Under these bills, the
fiduciary gets everything. They could turn around and
file a very costly class action lawsuit against the
of the Uniform Law Commission, disputes that scenario.
He said that before the Internet age, doctors and drug
counselors kept files with confidential information that
could be accessed by a fiduciary if they died. Any
fiduciary who released confidential information about a
patient would bear the liability, Orzeske said.
the executor of a doctor’s estate needed to get into
his office and shred files or give them to the doctor’s
business partner, they’d have to get into his office,
and they’d have access to confidential records,"
Orzeske said. "If the building custodian lets them
into the office, he isn’t the one who is liable. The
tech industry also argues that this type of legislation
is in direct conflict with the 1986 federal Electronic
Communications Privacy Act, which prohibits custodians
of digital assets from releasing them to a third party
without the sender’s or receiver’s permission or a
only is it a privacy issue, but the federal law
prohibits us from disclosing that information without
consent. The act of dying is not equal to consent,"
Szabo said. "We’re not only liable to the sender
and recipient but anyone harmed or grieved by that
said that companies are being forced to decide which law
to violate — federal or state. In states that have
enacted digital assets laws, his association’s members
have "let the terms of service dictate." He
said Facebook has been "very reticent" to turn
over contents of communications and private messages,
and Yahoo has taken a similar view.
group does support Rhode Island’s digital assets law,
he said, which requires that executors get a court order
to access email accounts of people who die and
indemnifies the provider from liability.
points out that Internet companies also have created
tools to help users decide what happens to their digital
accounts when they die. He cited Google’s inactive
account manager and Facebook’s feature that
"memorializes" an account and allows friends
to post remembrances while the user’s privacy settings
privacy groups also have qualms about digital assets
live with personal information that they do not wish to
share with, say, their parents or their significant
others," said Adi Kamdar, a policy analyst for the
Electronic Frontier Foundation, a digital rights
organization. "The best course of action should be
to respect this decision, even after death, unless the
deceased takes steps to allow their estate’s
administrator access to their email."
number of states already have tackled the issue of
Nevada, a personal representative has the power to
terminate the dead person’s email, social media and
other digital accounts unless a will or court order
Louisiana, Republican Gov. Bobby Jindal signed a bill
last month that has a similar provision, but also allows
executors to take control of and handle a dead person’s
much of our lives are now on the Internet.
Correspondence is done digitally through social media,
pictures, emails," said Republican state Sen.
Barrow Peacock, who co-authored the bill.
not trying to ‘get’ a company," Peacock said.
"We’re trying to make it easier for the family to
law focuses on minors who have died, giving personal
representatives access to their online accounts, unless
it is contrary to the provisions of a will, trust or
court order. Legislators took action after a teen from
rural Virginia committed suicide and his family tried
unsuccessfully to get access to his Facebook page to
search for answers.
Del. David L. Bulova said he co-sponsored the
legislation, which was signed into law last year,
because he felt that parents of children who die should
have access to their digital world.
when I was a kid, everything that was mine could be
stored under a bed or in a drawer. With my kids,
everything they have is online," said Bulova, the
father of three children. "If something was to
happen to them, I’d want to know what happened. The
idea that I would lose access to so many memories that
were stored digitally just didn’t seem right."
both supporters and opponents of the Delaware bill and
the Uniform Law Commission’s model law say they think
the issue will wind up being decided by the courts.
the meantime, Donna Johnson, the woman who inspired
Delaware’s legislation, said she believes that
lawmakers in her state did the right thing for people
like her mother, Claudia, who spent months trying
unsuccessfully to access her late husband’s digital
said that her father, an accountant, handled most of the
couple’s financial transactions. He paid bills, banked
and invested online. He booked vacations online. And he
kept treasured family photographs in an online photo
said that her mother had no idea that her car insurance
had lapsed because she didn’t have access to the alert
that had popped up in his email, which the Internet
provider shut down after his death. Nor could she get
access to his online photo album because that account
of all the challenges her family faced, Johnson said she
ended up drafting her own will and making sure that her
passwords and log-ins were included so that survivors
wouldn’t have to go through the same ordeal.
bill our legislature passed won’t fix everything, but
hopefully, it will bring this issue into the
forefront," Johnson said. "People need to
think about their digital assets when they prepare their
estates. Hopefully, we can get them talking about it and
planning ahead of time."