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Death and Digital Privacy: Please Delete My Browser History, Bro

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By George Khoury, Esq. on October 10, 2016 6:57 AM

Since the dawn of the Internet Age, world wide web users have been concerned about their digital privacy, but what about the digital privacy of the deceased? While there is a new trend for internet accounts to allow users to select account successors, will your BFF or best bro really be able to fulfill your last dying wish of deleting your web history before your mother sees it? Unless your friend knows or can crack your password, or you've left specific instructions on how this can be accomplished, and those instructions aren't locked away behind a password secured email account, your bestie isn't going to be able to delete that embarrassing web history.

The good news is that if you haven't left instructions outside a locked email account or computer, it is unlikely anyone else will be able to, unless the law changes -- as it recently did in Delaware.

What Rights Do Relatives Have?

The laws regarding privacy after death have been heavily litigated in the context of torts, where famous deceased personalities become the subject of movies, books and other products meant for sale or publication. Generally, courts must balance the fact that a deceased person cannot enforce legal rights because they are dead, and that a surviving relative may have a privacy interest of their own, or may own the rights to publicity, which can survive death. For instance, when a movie is made about a deceased person, the decedent's surviving spouse would have an interest in their own portrayal in the movie, but not necessarily that of their deceased spouse.

Even though decedents are generally considered not to have legal rights, the law nevertheless still provides some level of confidentiality for their private information. For example, in a wrongful death case, certain medical records of a deceased can be ruled undiscoverable and inadmissible on privacy grounds.

In cases where family members request access to online accounts of their deceased kin, the trend is for service providers to deny full access, but to provide digital hard copies (CD-ROM or DVD) of the files contained on the provider's servers.

Delaware and Illinois Are Leading by Example

Recently, Illinois, and Delaware before them, passed laws on how to handle the online accounts of the deceased. Delaware's law operates in the absence of a deceased's specific instructions, and provides that the executor of the estate shall be given full access to all digital accounts. In Illinois, the law provides that, if the deceased did not leave instructions, service providers should release basic information, such as the deceased list of contacts, so that notifications can be sent and assets identified. To get more information than that requires completing the same lengthy process that those in other states must already dredge through.

Generally, for family members to get more information, they will need to provide information to the providers, including a death certificate, personally identifying information, as well as additional information that varies from provider to provider.

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