What should happen to your personal digital communications—emails, chats, photos and the like—after you die? Should they be treated like physical letters for the purposes of a will?
Yahoo doesn’t think so. The company is criticizing new legislation giving executors charged with carrying out the instructions in a person’s will broad access to their online accounts. The legislation aims to tackle the sensitive question of what to do when someone’s online accounts on sites like Facebook, Google or Yahoo outlive them.
This past summer, Delaware signed into law the “Fiduciary Access to Digital Assets and Digital Accounts Act.” It was modeled after legislation approved earlier by the Uniform Law Commission, a nonprofit group that drafts and lobbies for new state laws. In Delaware, the measure removes some of the hurdles that an estate attorney or other fiduciary would otherwise have to go through to gain broad access to the deceased’s online accounts.
“A fiduciary with authority over digital assets or digital accounts of an account holder under this chapter shall have the same access as the account holder,” the law states.
That expanded access violates the initial agreement users entered into when they started using Yahoo’s services, the company said Monday in a blog post.
“When an individual signs up for a Yahoo account, they agree to our terms of service, which outlines that neither their account nor the contents of their private communications are transferrable at the time of death,” wrote Bill Ashworth, Yahoo’s senior legal director of public policy.
Delete, not transfer
Yahoo’s terms of service say it may delete an account and all of the account data, if it’s shown a copy of the person’s death certificate.
The company said Monday that the legislation approved by the Uniform Law Commission doesn’t offer the right approach to providing a family or fiduciary the information they need when dealing with the loss of a relative. Part of the problem with the legislation is that it presumes the deceased would even want his or her digital communications to be handed over, Yahoo said.
Yahoo’s statement helps to clarify industry’s broader opposition to Delaware’s law.
“We agree with the concerns raised by Yahoo,” a Facebook spokesman said Monday.
Google did not respond to a request for comment, but in July co-signed an industry letterto Delaware Governor Jack Markell urging him to veto the law, noting that Internet companies already have privacy tools in place to address the issue.
Facebook, for instance, offers a “memorialization” feature for when users die. It doesn’t let anyone log into or modify the person’s account, but others can still post to the user’s timeline.
“Unfortunately, these innovations, user choices, and privacy concerns are ignored by the ‘give everything to the fiduciary’ nature of the law,” the letter said.
Delaware’s law also conflicts with the federal Electronic Privacy Communications Act, which prevents companies from sharing the contents of communications in civil court proceedings unless they first obtain consent from the subscriber or sender, the letter said.
The legislation has yet to make its way into other states besides Delaware, but that doesn’t mean its reach is limited. People don’t have to live in Delaware for its law to apply.
The law applies depending on which state governs the fiduciary relationship, said Kelly Bachman, press secretary for Delaware Governor Markell.
That means it would apply if the person’s will is created under Delaware law, or if someone is given power of attorney under Delaware law, she said.
