What the press is saying

Looking at Facebook’s Death Policy

Legacy Locker has provoked a lot of discussion about what actually happens to your Facebook profile after you pass away.   While Facebook thrusts your personal life into the glaring spotlight of friends and family, I’ve found that it can also be a very personal experience in that nothing else currently in the social space really tells the “Story of You” the way Facebook does.

Where else can you get a complete snapshot of a person’s life?   From a data standpoint, it’s certainly more detailed than a resume or even a trusted friend’s knowledge and opinion of you.  Your “friends” know where you were born, grew up, attended school, work and even vacation.  Your “friends” know your interests, hobbies, likes and dislikes and even other friends and social circles.

Then there’s the connectivity aspect of the information housed.  At any given time, I’m engaged in a dozen conversations across cities, states, time zones and oceans.  People know (either publicly or privately) my thoughts on events, postings and pictures.  I promote parties and initiatives, support causes and poke fun at friends all within the Facebook world.  It very much is a good representation of who I am.  If I kept a diary, it would be subjective, colored by my own opinions and perception of reality.  Facebook conveys the raw and unfiltered me.

This begs the question:  What would I want to happen to my Facebook profile when I’m no longer around?  Now, I’m young and am of the opinion that I’ll live forever.  Current statistical analysis proves otherwise.   Should I even care what happens to my Facebook profile?  What value does it have to anyone but me in the here and now?

My thoughts on this subject have been evolving over the past year and I’ve come to the conclusion that it is my responsibility to put a clear plan of action in writing.  While some may not appreciate their own account (which I clearly do), friends and loved ones probably ascribe some value to it.   The responsible and mature choice, therefore, is to leave access to a trusted friend or family member and instruct them on how I want to be remembered.  Leaving it up to chance is akin to not leaving a Will; inconsiderate at best and selfish at worst.

Many people have expressed that they don’t want their Facebook profile memorialized in any fashion.  More than one friend has said, “I want my profile to die with me.” The idea of a virtual ‘Do Not Resuscitate’ is a brand new concept and something your next-of-kin would not know unless specifically instructed to carry out your wishes.  All of this cannot happen without making proper arrangements.

But what happens if I don’t make these arrangements?  Here is Facebook’s current default policy, in detail:

fb-death-policy-image

So what does this mean?

Facebook will not just give your next-of-kin access.  They clearly state that it’s against their Privacy Policy to do so.   Furthermore, the 1986 Electronic Communications Privacy Act prevents the disclosure of stored communications unless there is a court order.  This means litigation.

If your family is intent on gaining access to your Facebook account, they’ll have to resort to legal action against Facebook.  Not surprisingly, this is becoming increasingly more common.  I recently spoke with an attorney in the Pacific Northwest who litigated such a case.

The deceased was a young adult who had been hit by a drunk driver while on his motorcycle.  The mother was aware that her son was a prolific Facebook user and wanted access as part of the grieving process.  She wanted the ability to communicate with his friends and maintain the connection to her son.  His virtual self was one of the key things she had left to remember him by.

Initially, the mother had full access to her son’s account and used it to notify friends and family of events as well as maintain it as a forum to remember.  Eventually, Facebook became aware of her unauthorized access and changed the password to protect the “user’s” privacy.   That’s when the grieving mother had to retain legal counsel.

The Attorney filed a complaint against Facebook seeking access to the deceased son’s account.  Eventually, the parties entered into what is called a “Negotiated Settlement” whereby the court issued a stipulated order that allowed Facebook to comply with its Privacy Policy while not being in violation of the law.  Only then could the family get the information they were looking for.

Facebook eventually provided the parents an electronic snapshot of their son’s Facebook page to see everything contained within it.  This included all messages, wall postings and photographs.  Facebook also permitted ongoing access to the public portion of the page.  This is akin to the view that any “friend” would have of the page. Facebook further cooperated by placing a link directing new traffic and messages to a website the family maintained in honor of their son.  Finally, the account was to be deleted one year from the date of the court order.

This is not the only example of a case or incident of this type, just one anecdote (among many) from an attorney with whom I am acquainted.  Other cases along these lines have been publicized in the news media, including a story by Ben Popken in The Consumerist.

Needless to say, such an undertaking can be very expensive and time consuming.  From what I understand, the plaintiffs were in the unique position of having readily accessible legal representation.  Most of us are not as fortunate in this regard.  I doubt if another family in the same situation would have the resources and connections to take on Facebook.   Much heartache, time and expense could have been avoided by circumventing this entire process through the Legacy Locker service.

Have you given any thought about what happens to your virtual self on Facebook?  Do you know anyone who has had to deal with a similar situation? Do you think people should leave instructions concerning how they want their profiles to be handled? I’m very interested in your thoughts and look forward to reading them.

Gregg Delman
Director of Business Development

Disclaimer:
This Blog/Web Site is made available by Legacy Locker, Inc. for educational purposes only, not to provide legal advice. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Please note that the material contained in this blog is not legal advice and is not to be relied upon in a court of law.  Furthermore, any federal tax advice contained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax related matters addressed herein.

Gregg Delman 14 Comments

14 Responses to “Looking at Facebook’s Death Policy”

  1. Jeanetta Toews Says:

    Hi, what blog platform is this? Can I download it for free or..? I would really like it if you could answer this question! Thanks in advance!

  2. candace Says:

    I would want my parents to have complete access to my facebook particularily messages. Although I would NOT want them to view these normally if I had passed it would be a good way ror them to really get to know what I was all about

  3. Duck Blog » Blog Archive Says:

    [...] • Sue for access: Need to see your family member’s Facebook profile, for closure? This treads well into some gray area, but it turns out, you can sort of do this. Sometimes. From Legacy Locker: [...]

  4. Michelle Liley Says:

    I found this to be intriguing. I belonged to Yahoo 360 a few years back and some one died and I would leave comments on the page. I love that one can be memorialized this way.

  5. What Happens (Online) When We Die: Facebook « Demonsoul's Blog . . . Says:

    [...] This treads well into some gray area, but it turns out, you can sort of do this. Sometimes. From Legacy Locker: If your family is intent on gaining access to your Facebook account, they’ll have to resort [...]

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  8. What happens to your Facebook account when you die? « It's the Coffee Talking. Says:

    [...] This treads well into some gray area, but it turns out, you can sort of do this. Sometimes. From Legacy Locker: If your family is intent on gaining access to your Facebook account, they’ll have to resort [...]

  9. Mandy Says:

    My brother’s ex-girlfriend now retains control of his facebook and has un-friended many family members, including me, in response to my requesting that she stop posting status updates on his facebook talking about how she’s selling his personal items. LOVELY. So even if they “memorialize” his facebook, his family members are no longer “friends” and we won’t have access to it? Looks like I’ll be calling Facebook’s corporate headquarters in the next few days.

  10. ben Says:

    I like the idea of the memorialized account, as it is described. I don’t want my family to have access to 5 years of my email inbox, and I’m sure they would feel that’s sensitive, and potentially damaging enough to be none of their business, even in the event of my death. Not that I have very “sensitive” stuff in my emails that I can recall, but reading somebodies private emails could only serve to create bad impressions, likely not good ones.

    Also, the electronic snapshot, if it includes messages and wall posts (presumably one’s inbox and also one’s “wall-to-walls”, then this would be more akin the view someone would have of their own facebook, not a friends. They basically gave the parents complete “access” to all the activity their son had on facebook, while denying them the ability to act as the user of the account. It is indeed a reasonable compromise between their privacy policy and the needs of the family.

  11. Top 10 Facebook Fixes | Lifehacker Australia Says:

    [...] has the keys to your account and instructions on what you want done with it. Officially, Facebook offers a “memorialized” account for relatives that can prove their loved one is deceased, but won’t hand over the keys to [...]

  12. Meghan Says:

    my best friend died last august. his page is memorialized, and his loved ones appreciate that. we leave him comments when we feel the urge. the only thing that is frustrating is that his pictures appear at the right side of my page sometimes in “photo memories” when i really don’t want to see that. it’s too hard. i hope this changes soon.

  13. Miscellaneous Fun Stuff » Blog Archive » Top 10 Facebook Fixes Says:

    [...] has the keys to your account and instructions on what you want done with it. Officially, Facebook offers a “memorialized” account for relatives that can prove their loved one is deceased, but won’t hand over the keys to [...]

  14. What Happens To Your Facebook Account When You Die? | Roland Charles: The Blog Says:

    [...] This treads well into some gray area, but it turns out, you can sort of do this. Sometimes. From Legacy Locker: If your family is intent on gaining access to your Facebook account, they’ll have to resort [...]

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