In 2005, a motorcycle accident took the life of 22-year-old Nebraskan Loren Williams. In an effort to find out more about her son's life, Karen Williams obtained his Facebook password from a friend and emailed the social networking company asking if she could log into the account and read his posts.
Within a couple of hours the password had been changed and she was locked out. By logging in to her son’s Facebook account, Williams was in breach of the terms of service.
Under US law Williams was forced to sue Facebook Inc in order to obtain a court order to gain access to the account. At the time, this case was unique but as social networking sites grew in popularity, more users inevitably meant more deceased users.
Their next of kin – and the legal system – began to think about what it meant for a person's 'digital remains' to lie within the database of a third party service provider such as Facebook, Google or Yahoo.
“Once upon a time we had this shoebox filled with letters and photographs. We’re now creating this situation where a lot of what we do is being committed to digital storage,” says Damien McCallig, final year PhD candidate in the School of Law, National University of Ireland, Galway, where his research is on the law of digital remains.
“The difficulty is that after you die nobody can get into those [social media accounts] unless they have your password. And if you do log in, for most of these, you’re actually in breach of the terms of service.
“If you read Facebook’s terms and conditions, very clearly, even with their updated service, it says that if you log into somebody else’s account it is a breach of service and they will cut access to it.”
Frozen in time
In the 10 years since the Williams case, Facebook has provided options other than granting access to family or friends of the deceased: an account can either be closed down or ‘memorialised’, which is essentially an account frozen in time.
Facebook friends can view all the content they were once able to and can still write on the deceased’s timeline but the account no longer appears in public spaces such as birthday reminders.
More recently, Facebook introduced the notion of the ‘legacy contact’, essentially allowing a living user to nominate a contact to manage their account if memorialised after death. This feature, however, is currently available in the US only.
By and large, other social media platforms have more or less the same approach to the rights of the deceased and how they are transferred to next of kin.
"All of these accounts – it could be anything from MMRPG accounts [such as World of Warcraft] to online gambling accounts, Twitter, Dropbox, you name it. In general, you are the creator of what you put on there and you have copyright," says McCallig.
If what you create and store on a social media account is viewed by the law as your intellectual property, then you are the creator and you hold copyright. McCallig explains that while you can stop people using or reproducing this content, you have no automatic right to access it; it is the terms of service of the social media platform that are allowing you to do so.
You cannot demand this access any more than JK Rowling, while holding copyright to her works of fiction, can demand that you give her your copy of Harry Potter and the Goblet of Fire. Her next of kin can inherit this copyright but they cannot take back your book either.
Beyond viewing the deceased’s social media profile, there are economic, sentimental and, of course, practical reasons for gaining access to private information held on a third party service.
McCallig cites the 2005 case of a US widow who required access to her husband's Gmail account in order to run their joint business. "She lobbied her senators in Connecticut and they passed a Bill in the state allowing for access to survivors. This was the first digital remains law."
Digital heir
Since then Google+ introduced the concept of nominating a digital heir. In 2013 Google Inactive Account Manager came into being. This allows a user to nominate who has access to their information and whether they want their account to be deleted. A trusted contact has a three-month timeframe within which they can download data from any Google products you choose to share with them including Gmail and Google Drive.
Slowly after this first US Bill was passed, laws began to trickle through in various states until in 2014 when the independent Uniform Law Commission drafted a proposal to enact a Digital Assets Act allowing fiduciary access ie, for a person nominated to deal with a deceased's assets.
If adopted in all US states, this would mean digital assets such as Facebook photographs, YouTube home movies or email conversations could be treated like their tangible, shoebox dwelling counterparts.
Here in Ireland, the picture remains unclear. In theory, McCallig says, logging into the account of your deceased loved one could potentially be viewed as hacking, given that it is violating terms of service and, theoretically, could be viewed as gaining unlawful access. However, “it would be very difficult to see a criminal court prosecut[ing] you,” he adds.
We are, to a large extent, dependent on US law because most of these social media platforms are US-based: “In general you have to accept that you have to go to the US to enforce the law.”
On the other hand, we must take into account the wishes of the deceased. Services such as Facebook, Google and Twitter will not hand over the login to someone’s social media account because it is a violation of the user’s privacy. There has to be some sort of balance, argues McCallig.
“If I don’t want any of my family to get access to my account, while I’m alive I should have that option to say no and click a button that I want it deleted [upon death]. You should have that autonomy to do that.
“But there are other practical aspects to accessing keys and codes. A lot of people might remotely manage [smart home] systems in their house and gaining access to that to override, say, security access is a very practical thing that needs urgent action. Legally, this access takes a lot of time.”
Another important aspect to lives increasingly lived through social media, is the grieving process after loved ones have passed away, leaving digital memories scattered across Facebook, Twitter, Instagram, Pinterest and beyond.
"Grief is grief. We all have a tremendous need to have our grief validated, to connect with other people. Really all we've done [by moving to social media] is change the platform where this happens," says Dr Susan Delaney, psychologist and Bereavement Services Manager with the Irish Hospice Foundation.
Lack of closure
“What used to happen is there was a death notice and the family was the inner circle; you might hear about the death if you lived in the same village or read about in in the newspaper. What happens now is that information is instant: everybody gets the information – and misinformation – at the same time,” she says.
This shift to social media, says Dr Delaney, means that very often, certainly with a younger generation, the friends are now the inner circle.
Facebook is where many young people live, so if a memorial site is set up “the grandparents and possibly parents may not be on Facebook so the family becomes disenfranchised”.
With grieving online comes the issue of closure. “What social media gives with one hand it takes with the other,” she says, explaining that while it provides a place for people grieve through stories and conversation (much like what happens at a wake), it is indefinite 24/7 access so closure is not as clearly defined: “if you could constantly be flooded with images of the [deceased] person it brings things back to how it was rather than allowing it to move forward. At what point does this become too extreme?”
Dr Delaney, however, stresses how important these memorial sites are to younger people and the distress caused when a family member or the social media service closes down an account: “A lot of young people live in fear of a Facebook page being taken down; that’s when the loss hits them.”
Saying goodbye
"We spend a huge part of our lives online so it's becoming more and more apparent that we should plan for our own deaths online," says James Norris, founder of DeadSocial, a UK company that helps individuals create social media 'goodbye messages' for their loved ones.
Upon opening a DeadSocial account it is possible to create video or text messages to be timed for broadcast from your Twitter, Facebook, Instagram or Google+ accounts months or even years after your death.
You assign what is known as a digital executor who can log into an account assigned to them by the deceased and click a button that initiates the sending out of messages at specific times and dates as the deceased requested.
“In terms of the way we position ourselves, we sit above the distribution model [of third party services] so we’re at the top. When somebody uses DeadSocial, they own the data, it’s theirs forever and their next of kin is able to claim that in whatever way the terms and conditions of the third party service allows them to,” says Norris.
This kind of message from the beyond won’t appeal to everyone but perhaps what is even more appealing to the average person is the wealth of free information provided by DeadSocial on how to go about creating a social media will. The company works with charities, conferences and medical professionals to distribute information to those who want to put their social media affairs in order.
“We provide step-by-step guides on how to download all of your data from Facebook, Twitter and Google before you pass away. In the case of Instagram, they don’t currently give you this option but there is a workaround with a third party tool called Instaport.”
There’s also practical advice: if you are passing on all of your accounts to your next of kin you may want to edit or remove your messages because they are too personal to pass on to your child or parent, observes Norris.
“There is a need to raise awareness of these issues: preparing for death digitally.
Norris adds: “We recommend that everybody has written a will because ultimately it is your legally binding document that ensures your wishes are met. We recommend that within that, when possible, you include directions as to your social media and perhaps append a document that has your wishes for the various different sites that you use.”
