Social networks currently routinely keep hold of data left behind by deceased account holders. Some commentators argue that specific laws should be passed to clarify procedures, at the very least giving living people the right to decide what to do with their private data after their death.

The ‘Digital Afterlife’: Determining the Destination of Social Network Data after Death

The unresolved issue of protecting the data contained in a Facebook account and regulating its use following the decease of the user has just resurfaced in the United States. A paper recently published in the North Carolina Law ReviewbyProfessor Jason Mazzone, an intellectual property expert at the University of Illinois College of Law, points out that “virtually no law regulates what happens to a person’s online existence after his or her death.” So social networking sites set their own policies as to what, if anything, to do with a deceased user’s account and the materials s/he posted to the site.Professor Mazzone argues that only the federal government is in a position to legislate so as to ensure that everyone can make their own choice regarding their ‘digital afterlife’. He points out that, beginning in 2010, only five US states have so far passed laws on the subject and these are inadequate to cover the activities of a social network that operates right across the United States. At present, Facebook archives the material from the account of a deceased person. This means that the page and all its content – status updates, photos, videos, etc – disappear from the site, but a memorial wall remains so that friends and family can express their condolences and post comments.

Content could well prove valuable

So what’s the problem? Well, “the content is no longer visible but it’s all still on Facebook’s servers” and it might well have some future value which cannot really be determined at present, explains Professor Mazzone, adding: “It’s not hard to imagine that the content a celebrity posts on a Facebook page would be valuable if offered for sale after his or her death.” And this is just one of many ways such data could be exploited. However, in the United States and numerous other countries, a page on a social networking site counts as intangible personal property and, like tangible property, it can be left to named beneficiaries in a will or inherited by the deceased person’s heirs if no specific bequest has been made. "Whoever uploaded the content has a property right that is protected – it’s not extinguished by anything Facebook does," he stresses. Nevertheless, at present people who inherit the copyright to posted content are not actually in a position to get their hands on it – an unsatisfactory situation as far as the Law Professor is concerned.

Health records rules might provide the model

That’s why we need to get to a place where we can require an entity like Facebook to give individual users at least some possibility of deciding while they’re still alive what’s going to happen to their content after they die.” He reckons the Health Insurance Portability and Accountability Act (HIPAA), which regulates the handling of electronic health insurance files and lays down what items are to be regarded as sensitive patient data, provides a good example of how to go about this. The time has come to enact “a HIPAA-style federal statute which would make clear who is authorised to make decisions about a deceased user’s social network account,” argues Professor Mazzone.