When Helen and Jay Stassen’s 21-year-old son, Benjamin, committed suicide 19 months ago, he did not leave a note.
If it had been 20 years ago, the Stassens might have looked through diaries, letters or other personal items in an attempt to find clues as to why he decided to end his life. These days, however, young people tend not to keep things on paper; instead, their most intimate thoughts are likely to be online – in emails, social media posts and personal blogs.
So that’s where the Stassens went searching. They found themselves engaged in a conflict with Facebook and Google as they hunted for answers about their son’s death and the companies sought to honor their contracts with their users.
“We are reeling with the reality of being parents who not only have our son who has died, but a very difficult death on top of it which is not anything we ever saw coming, which has added to our desire to really want to know why,” said Helen Stassen from her home in Prescott, Wis.
The Stassens say that Benjamin, a college student, had hoped to be an entrepreneur one day and was a health food enthusiast who loved to play the drums and practice yoga. To keep his memory alive, they built a free library at a park near their home and their extended family helped get a bench named for him near the Mississippi River.
“Those have been experiences that have helped and have healed in tiny ways that are a contrast to the fight that we’ve been in,” Helen Stassen said.
Digital assets include email, social media accounts, digital photos and online banking accounts and records. The Stassens think Benjamin’s online life might provide a clue into their son’s last days and as the heirs of his estate, they feel they have a right to get access to his accounts.
“Social media is a major way 21-year-olds interact these days,” Jay Stassen said. “We thought maybe this could bring us some understanding, maybe some peace. We didn’t know, but we felt it was important to try to understand.”
A local judge recently granted the family a court order directing Facebook to give the Stassen family access to their son’s account. The court order says that the Stassens are the heirs to their son’s estate and are entitled to any of his assets, possessions or records, including the contents of his Facebook account.
Emails provided by the family show that Facebook has received the court order and it’s currently in their legal department. Legally, Facebook can appeal the court order or comply with it. When asked about the Stassen family’s court order, a Facebook spokesperson said that the company does not comment on specific cases.
Legal experts said that court orders can trump user agreements. Online companies’ user agreements are contracts with the user that usually guarantee privacy and prohibit or limit account access to others beside the user.
“If Facebook is doing business in a jurisdiction and the court orders them to do something, they pretty much have to do it or face the penalty. If they don’t follow a court order, they can be held in contempt of court,” said Peter Swire, a law professor at Ohio State University.
Swire, who served as Chief Counselor for Privacy in President Bill Clinton’s administration and as an adviser to President Barack Obama on privacy issues, said that online companies face a “patchwork of state laws” and are usually cautious when it comes to granting access to a deceased user’s account.
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“What happens if a 21-year-old had a safe deposit box at the bank, the answer is the safe deposit box belongs to his estate and whoever controls the estate gets to open the box,” Swire said. “In the physical world, it’s easy to tell if it’s someone’s parents or child who has the safe deposit key, it’s trickier for Facebook and Google. Some evil prankster might pretend that a person is dead and try to take control of the account, so the online companies are understandably careful before they turn over the account to someone who says they run the estate.”
Online companies such as Facebook say they are concerned with honoring their contracts with users which require them to protect their users’ privacy. It is possible that a deceased user may not have intended for his online accounts to be accessed by his loved ones after he died.
“I think it’s a good idea for sites not to have a blanket policy to hand this stuff over to survivors. This information is private and you assume that it’s private, you assume that your Facebook account is private, you assume that your email account is private,” said Rebecca Jeschke of the Electronic Frontier Foundation, a digital civil liberties group.
Jeschke said that the problem is that people often don’t know what their deceased loved one’s wanted to happen to their online accounts.
“What’s really important is that your survivors know what it is that you want, to say to your spouse and parents, ‘No, you can’t read my email after I die or yes, I want you to.’ I don’t think I’m the only person that would be uncomfortable with the idea of someone reading my email after I pass,” Jeschke said.
Naomi Cahn,a law professor at George Washington University, said that there is “almost no binding legal precedent out there” when it comes to digital assets.
“It’s a concern of internet service providers being caught between privacy and the meaning of their contracts and being faced with a court order to which there could be quite severe penalties if they don’t comply with it. It’s something that lawyers, state legislatures, hopefully the federal government, hopefully the internet service providers are all starting to think more about as these issues become common,” Cahn said.
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Cahn said that current laws have yet to catch up with the digital age, leaving families like the Stassens in a frustrating limbo.
“When somebody dies, the person who is responsible for taking care of the individual’s asset is supposed to be complying with what the individual wanted and protecting the individual,” Cahn said. “Because so many people have not thought about this, we don’t know what the person actually wanted…we can all imagine what’s in internet accounts. There may certainly be cases where the person who died would not have wanted anyone to get anywhere near the person’s account.”
Only five states currently have estate laws that include digital assets — Connecticut, Rhode Island, Oklahoma, Indiana and Idaho – and the laws vary among them. Some states’ statutes, for instance, just relate to email, with only Oklahoma and Idaho clearly including social networking and blogging as part of an estate.
“Legally it is unclear exactly what you can do in the 45 states — and Washington, D.C. — that do not have these laws that address this situation,” Cahn said. “Even in those states where there are laws, we’re still in the process of testing how those laws operate. They don’t cover all Internet accounts and the laws are new enough that they’re just in the process of being worked out.”
Cahn said that most people don’t think about what will happen to their online accounts when they die, but if they did, they would likely feel differently about different sorts of online accounts.
“Some of the ones that we expect to be passed on, like getting access to online bank account statements, doing online bill paying, those probably we would expect others to be able to take control over. Many of us probably think that once we die, our Facebook accounts should either be memorialized [left up for only friends to see] or deleted entirely,” Cahn said.
Internet companies such as Google, Yahoo and Facebook have taken the position that the user probably intended for the contents of his or her account to remain private and crafted user agreements to reflect this, Cahn said.
“They do assume that the user wants privacy, there’s all kinds of advice on passwords and password strength to make sure that there’ s no unauthorized use,” Cahn said. “One of the reasons we have passwords on our accounts, one of the reasons we get so outraged when there’s a hacking is we have certain expectations of privacy when we open accounts.”
There also are liability issues. Some states prohibit internet companies from disclosing information without the permission of the customer. With no clear definition of digital assets in most states, the companies then look to their user agreements and the laws of individual states when a user dies.
“Right now it’s kind of the Wild West in most states. The statutes don’t refer to any kind of digital asset or account,” said attorney Suzanne Walsh, who specializes in wills and estates.