Laws, guidelines few when dealing with online life of the deceased - Omaha.com
Published Wednesday, April 24, 2013 at 1:00 am / Updated at 8:00 am
Laws, guidelines few when dealing with online life of the deceased

LINCOLN — Bryan Backhaus' Facebook profile was easy to find.

A quick Google search of his name yielded his page, but all the information was at least five years old.

Backhaus was 22 when he died in April 2008 of a rare form of spinal meningitis. His family thought his Facebook profile needed to go.

“It just doesn't feel right to have it up there,” said Judy Backhaus, his mother.

So Judy — human resources coordinator for the clerk of the Legislature — and her daughter, Autumn Backhaus, tried contacting Facebook to take down Bryan's account. They made several phone calls and sent emails but had a hard time reaching anyone.

“I actually gave up on it because we just didn't have any way of dealing with it,” Judy Backhaus said.

What happens to a deceased person's digital assets is largely dictated by individual company policies. Some examples:

Facebook: Can “memorialize” an account so friends can post remembrances but no one can log onto the account. Immediate family members can also request that the profile be removed entirely.
Memorialization request
Removal request
Request content

Google: Offers a new feature called inactive account manager. Users can designate in advance that data will be transferred to somebody else or deleted after a predetermined period of inactivity. More information.

Twitter: Will take down an account, but only after an immediate family member or a representative emails a copy of a death certificate, as well as proof that the deceased owned the account. More information.

Yahoo: Requires a copy of a death certificate to terminate an email account and permanently delete the contents. More information: Terms of service agreement, section No. 28

LinkedIn: Requires a death certificate to remove a deceased person's account. More information.

Legal experts say that sort of situation will become more common as the use of social media and other electronic communication continues to grow. A proposal now before the Nebraska Legislature would clarify what happens to the “digital assets” of the deceased.

Nebraska is one of 14 states where legislation has been introduced since 2012. Connecticut, Idaho, Indiana, Oklahoma and Rhode Island already have passed digital asset laws, which vary widely in scope.

State Sen. John Wightman's bill, which is unlikely to be acted on this year, would allow the executor of a will to control, and also terminate, the social media accounts, email accounts or blogging websites of someone who dies. The Lexington senator offered a similar bill last year.

Wightman's proposal, Legislative Bill 37, has the support of the Nebraska Bar Association.

Estate attorneys are coming across questions about digital assets such as Facebook and Twitter more frequently, said Katie Zulkoski, a lobbyist for the state bar. But no state law addresses the matter.

“Right now there just isn't a consistent answer,” Zulkoski said. “And that's what makes it difficult for attorneys and more importantly for the families.”

Adam Grieser, an attorney who works in estate planning for Fraser Stryker in Omaha, said he's only encountered a handful of cases in which digital assets were involved. But he thinks legislation could be helpful, especially as younger users of social media begin to age.

“Typically, estates I've planned are for people in their 80s and 90s, and their Facebook pages just aren't one of their priorities,” Grieser said.

Wightman's bill is being delayed as the issue is examined by the Uniform Law Commission, a nonpartisan group that proposes model legislation for states.

The commission is preparing uniform digital assets legislation that should be ready for state governments to consider next year, and the state bar association is willing to work with the commission, Zulkoski said.

“There is really a need for a good, clear law here,” she said.

The tech industry also supports waiting for standardized legislation from the commission, said Steve DelBianco, executive director of NetChoice, a coalition representing Internet companies including Google, Yahoo and Facebook.

Tech companies have been working with the commission to draft legislation that complies with federal law and companies' terms of service agreements covering the release of users' information, he said.

No digital assets bill has been introduced in the Iowa Legislature.

The Iowa Bar Association formed a committee to study the matter in 2012 but decided not to draft legislation after learning that the Uniform Law Commission had taken up the subject, said Iowa Bar representative Josh Weidemann.

Still, Weidemann said the need for a law is clear.

“This is only going to get worse as time goes on and people become more dependent on electronic communication,” Weidemann said.

Congress has no plans to address the matter. Rep. Lee Terry of Nebraska, who serves on the House Communications and Technology Subcommittee, doesn't plan to introduce a digital assets proposal and has not heard of any plans, said his spokesman Larry Farnsworth.

As it stands now, what happens to a person's “digital life” after death is largely dictated by individual company policies.

Most companies will remove an account if there's proof of the owner's death, but a court order is required to get specific information from an account.

Facebook will deactivate an account if an immediate family member provides proof of death, such as an obituary or death certificate. A Facebook account also can be “memorialized,” allowing “friends” to post memorials.

“Facebook always tries to be as helpful to families as possible while still complying with federal and state law,” Facebook spokesman Andrew Noyens said in an email.

Google launched a service called “inactive account manager” this month to let people control what happens to their accounts after they die. Among the choices — have your data deleted after a certain number of months of inactivity or have data sent to “trusted contacts.”

If the service isn't used, family members would need a court order to get access to email, video or other Google accounts.

As a practical matter, a family member with the deceased person's password could deactivate a social media account.

But Grieser cautions that that could lead to legal problems, depending on the company's terms of service agreement. For example, Yahoo's service agreement states that an account holder surrenders all rights to information in the account after death.

“Once you pass away, your will can say something about this account, but you might not have any rights to pass on through your will,” he said.

Bryan Backhaus hadn't supplied his family with his Facebook password.

But the Backhauses recently made another attempt to contact Facebook after learning about the process to take down a page from The World-Herald.

A week and a half ago, Judy and Autumn Backhaus emailed a copy of Bryan's death certificate to the company.

On Monday night, Facebook notified the family that the page had been removed.

“I'm amazed. I'm amazed,” she said. “This is a good thing.”

Contact the writer: Robby Korth

Robert.Korth@owh.com    |   402-444-1169    |  

Robby is a a general assignment intern at the Omaha World-Herald and a senior at the University of Nebraska-Lincoln.

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