New Facebook tool masks tech industry’s digital death fight

Facebook wants to cheat death. Or at least the laws governing death. That’s how a cynic might see a new feature that lets users hand over part of their profile when they pass away.

The feature is called “Legacy Contact” and for the first time allows users to designate someone who can do things like update their cover photo and manage friend requests in the event of their death. This is a change from existing rules, which only allow loved ones to delete a user’s account or freeze it as a memorial.

Suzanne Walsh, an estate lawyer with the firm Murtha Cullina, said in a phone interview that she is “thrilled” by the move. But she also sees it is an attempt by Facebook to forestall the “Digital Assets Act,” a model law intended to help executors obtain assets — contracts, passwords, digital currency and so on — that may only exist in a deceased person’s online accounts.

“They must have designed this with our statute in mind,” said Walsh, who chairs the committee drafting the model digital law on behalf of the Uniform Law Commission.

Facebook is part of that committee and has allegedly been lobbying aggressively to stop states from going forward with the law. Currently, Delaware has already put a version of the Digital Assets Act into law, 20 other states could follow suit this year.

Those efforts, however, have been complicated by a campaign by Facebook, Google, Yahoo and other big gatekeepers of people’s digital lives.

Who gets control?

A spokesman for Facebook said that the Legacy Contact is not related to the legal process, and that the company created the feature to support those grieving, and to give users more say over what happens to their account. He also referred legal questions to the “State Privacy and Security Coalition,” an obscure trade group that is representing at least 20 tech companies in the debate over the Digital Assets Act.

Walsh, however, is skeptical of such an explanation, and said that Facebook is instead digging in to preserve its own position on how to handle digital death issue.

She doubted the tech companies’ public position, like the one put forth by Yahoo last fall, that legal changes intended to empower executors threaten to undercut users’ privacy wishes.

Walsh also questioned the tech industry’s argument that people use Terms of Service agreement to express their posthumous preferences — instead, she suggested that people are likely to click “I agree” to whatever Terms are put in front of them.

For practical purposes, however, the Terms often provide very different options.

In the case of Facebook and Google, the companies at least offer some measures to deal with posthumous accounts, and to treat loved ones with sensitivity. Others like Twitter, however, simply delete the accounts, pointing to a Terms of Service clause that permits them to do so.

For loved ones, however, the companies’ justifications can be unsatisfactory. One example is the case of Eric Rash, a 15-year-old who took his own life, and whose parents have been pressing Facebook to share information from their son’s account. In response to this story, Rash’s father, Ricky, sent an email message saying that supporters of the Digital Assets Act in Virginia recently lost a close vote in Virginia.

This type of discretionary power on the part of the tech companies, according to Walsh, is why the Digital Assets Act is necessary in the first place. She also explained that it would give the executor (a person named in a will, or appointed by the court if there is no will) only a discreet, limited power to obtain what they need.

“It doesn’t mean I get a week to go trolling through everything. I am not empowered to do whatever I want.”

Facebook’s way or another way?

While the Legacy Contact feature gives Facebook users a new way to have a say in their account if they pass away, it also creates the possibility of awkward legal and social collisions.

Imagine, for instance, a clash between a Facebook user’s Legacy Contact (who has power to delete the account) and a legally-appointed executor. What will happen if the Legacy deletes the account before an executor can obtain what they need?

These issues are not, of course, particular to Facebook and could apply to a raft of other companies — like Twitter, Tumblr or Apple — that have come to act as repositories for users’ personal lives, but that largely deny them any property rights in what they put there.

From the companies’ perspective, especially ones like Facebook whose accounts are unlikely to contain important financial or legal information, it’s understandable that they don’t want to get involved in the emotional trials associated with a dead user’s loved ones. Likewise, it’s not surprising that the people who run social media companies, whose basic goal has been creating networks of young advertiser-friendly people, are not especially concerned with issues of mortality.

But ultimately, they may not have any choice as people put more and more of their lives’ online — lives that will one day come to an end.

This story was updated at 11:30am on Friday to include the Rash family’s story.