Consider this: you're reading this on social media right now, which means that, like most Americans, you're active on at least SOME social media sites and platforms. Have you ever considered what happens to all of those accounts after you pass away? No? Neither has anyone else, frankly. This is an entirely new and modern problem.... one that is silently growing. As of right now, about 1/3 of all facebook pages are for accounts of people who are deceased. Twitter, instagram, pinterest, linkedin... all of them are collecting "dead" pages and no one has quite figured out what to do with them.
Some of these social media sites have developed policies for allowing people to access the accounts of deceased loved ones, but most have not and there's no standard or rules. And what about all of your OTHER online accounts? Dating sites, cloud-based storage sites, business and industry sites, online shopping sites, sports and entertainment sites.... The average person reading this article probably has 20 or more logins to various internet based accounts written down within arm's reach (or saved on their computer) right now.
This raises a LOT of problems. First, "dead" accounts don't get updated or have their passwords changed, meaning that these accounts can be hacked and used for all sorts of nefarious purposes, including fraud and identity theft. Many of these accounts have fees associated with them, meaning that they are tied to bank or credit cards. Plus, it's just a little creepy to get a message from social media prompting you to wish a happy birthday from a friend who passed away three years ago. And what if your last post was something embarassing or a terrible photo of you... is that how you want to be remembered in perpetuity?
Under the law, if you've appointed someone to take action on your behalf under a power of attorney, your first thought is that your agent will be able to use that power to access your accounts, but you'd be wrong. First, your ability to appoint someone ends the moment you pass away, meaning that your power of attorney expires when you do. On top of that, none of these sites have any standardized way of handling these situations. They are highly reluctant to give out your private information and access to your account to anyone else under any circumstances because the potential liability for leaked data is enormous. Plus, how is a social media company supposed to verify that a) the person asking to take down your page is actually your spouse or family member or b) even if they can prove it, that they have any authority to do so?
It is also unclear as to whether or not your executor, trustee or personal representative has any authority over your account. These people have power to administer property and funds that you own, but do you "own" your accounts online? Are they your "property" such that they are part of your estate or assets of your trust?
The law has not answered that question yet. The truth is that no one really knows. I could put ten lawyers into a room and ask them and I'd probably get ten different answers.
In the coming years, there will be court cases. Family members will eventually start filing lawsuits and petitions seeking decisions from the nation's courts, and our judges and justices will start to craft legal opinions that will eventually guide practitioners such as myself.
Until then, what do we all do? Well, here at Magner Law, we've developed a legal instrument that our clients can use to authorize an agent to take actions with regard to their online and social media accounts and to provide instructions regarding how they want their online presence handled in the event of their demise. To the best of our knowledge, no one else is doing this yet - we're the first. These instruments have never been tested in court, but our hope is that they won't have to be - that if we help our clients provide clear, precise instructions and clear authority to act, it will actually help companies that run social media sites and online user accounts address a problem no one is even talking about.
Maybe in twenty years, the laws will be clear and we won't need such legal instruments. But between now and then, it is estimated that some 30 MILLION more facebook accounts will fall into this category alone. You can wait and see what happens, or you can take action now. The choice is yours.