by Philip K.
When people plan their estate with their attorney, they usually discuss matters concerning their home, business, savings, and other assets. However, they should consider examining their digital assets as well. The Social Media Revolution has transformed the way we share ideas and interact with others. Now, with smartphones, we are always connected to this virtual world. On these social media websites, we write about our daily routine, post viral videos, express political views, and keep in contact with family and friends. These social media websites are catalysts for new content and trends, constantly introducing users to a new genre of media. Personal profile webpages have become a reflection of society, culture, and more importantly, ourselves. And chillingly, these imprints never leave the cyberspace.
The Social Media Revolution not only created a cultural phenomenon, but it also created a lucrative market for electronic “gifts” and social advertising. Personal profiles of popular personalities have proven to be tremendously profitable and valuable. For instance, a celebrity’s Twitter webpage with millions of “followers” possesses incredible influence in shaping and marketing new products and movies.
These developments raise many legal questions when the owner of the profile dies: Who can terminate the profile? Who owns the contents stored in the profile? Who has access to the password? These pertinent questions remain unanswered even as social contents have come to play a vital role in our society and culture. Social media websites have failed to discover a simple way of identifying deceased users. As a result, many accounts and profiles continue to operate as usual even after the death of the owner. In 2012, an estimated 500,000 deceased Americans left their Facebook profiles; many of these profiles remain intact because there is no simple way to declare someone “dead.” Indeed, the fragmentation of these individual websites has created an even more complex environment. Each social media website and email provider requires different verifications to transfer online content to an estate.
Ambiguity in this area of the law poses serious questions as more people upload valuable content and information onto websites. For instance, if I take a photograph and upload the image to my social media website, the digital image becomes my property. Theoretically, I control the distribution of that image. If I die and my contents do not pass onto an estate, ownership of those contents becomes ambiguous. Who grants permission to use my social contents? Who deserves the royalties (if any)? Who can erase my content? Further, if my social media webpage remains open, visitors can “steal” images from my website without consent.
The frequency of hacking has added a new twist to this legal conundrum. If a deceased individual’s profile continues to exist without regulation, a hacker can potentially steal the deceased user’s information to commit fraud. Just last week, Facebook announced that hackers broke into Facebook employees’ laptop, giving the hackers the potential to compromise sensitive information of more than 1,000,000,000 Facebook users. Additionally, Twitter announced a few weeks ago, that hackers gained access to 250,000 user accounts, names, and email addresses.
The way we socialize is changing exponentially faster than the legal system. For instance, legislation on cyber-bulling is only now gaining traction. Similarly, I believe that lawmakers must acknowledge the lack of clarity on how to handle social content after death. Specifically, we need to align the various social media website and email providers with respect to what happens to content and password after death. Forcing all websites to follow a standard path will lead to less ambiguity and dampen privacy concerns. It will be equally important to educate the public about the importance of discussing online content and password during estate planning.