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Lawmakers Grapple With The Question Of Digital Life After Death

The Senate is set to take up the task of determining how emails and social media accounts will be accessed after death, but some claim the measure could interfere with existing federal law.  

When Florida Sen. Jack Latvala uses Facebook, there is a name on his friends list that is never active. The friend has passed away, but her digital presence lives on, trapped in the cloud.

The Clearwater Republican is a co-sponsor of the Florida Fiduciary Access to Digital Assets Act with Sen. Dorothy Hukill, R-Port Orange. The bill is meant to close the digital estates of the deceased, something Latvala supports.  But now he worries the move could give a deceased’s family too much access.

"What if there was a married couple, and there was stuff on the facebook page, messages or whatever, that you didn't want your spouse to see? Why is it important that they be able to look at those messages?" asked Latvala.  

The proposal would grant access not only to social media accounts, but to emails, and electronic bank statements—pretty much anything stored online.

But Travis Hayes, Vice Chair of the Digital Assets Committee at the Florida Bar, argues the measure gives residents ownership of their content--content that companies like Google and Facebook refuse to give up. 

"This isn't really a privacy issue. We're trying to switch control back to the Florida residents. Internet services providers control who has access through their terms of service,” he told lawmakers during a recent committee hearing on the bill.

However, a group called Netchoice, says an overwhelming percentage of Americans do think it's a privacy issue. They represent companies like Facebook and Google. Netchoice’s Executive Director Steve DelBianco says the group recently dubbed the bill, “iAwful”.

"We had Zogby do a national poll of over a thousand registered voters and 70 percent  said no one should access the content of their private messages and photos unless they gave prior consent,” he said.

DelBianco believes the bill is being driven by estate lawyers, like Hayes and the Florida Bar, who want to streamline the probate process. Hayes doesn’t deny this.

“I do agree with that, but I don’t see how that’s a bad thing, for better or worse. If I have this bill in place, it gives me a blueprint. I’m spending less time on cases and your constituents are spending less in legal fees,” said Hayes.

According to Forbes Magazine, nearly half of Americans ages 55-65 don’t have a will. Should a person die without plans for their digital accounts, those will remain in the cloud, locked like a safe. This bill would become the key, and automatically give fiduciary powers to the closest living relative. And that’s a big problem, says the ACLU of Florida’s Policy Director, Michelle Richardson.

"It says for the purpose of the bill, the legislature declares everyone in Florida has consented to divulging the information," she said.

Much like the biblical-scroll-length Terms of Service agreements, no one ever reads, Richardson says the bill acts like one statewide user agreement for all online accounts, and even voicemails. 

And that’s where some say the legislature’s proposal could run afoul of federal law.  The Electronic Communications Privacy Act prohibits providers from releasing the contents of their users to anyone without the express consent of that person.

Companies like Facebook and Google say if the proposal passes, they will be in a Catch-22, their representative, DelBianco, told Sen. Rob Bradley, R-Orange Park, during a recent committee hearing on the bill:

"Our providers cannot and will not comply with this law because federal law prohibits us. Your voters and our users say we should not violate their privacy wishes when they die," he said.

"That's a pretty serious allegation. You're saying an attorney, Sen. Hukill, who does this for a living has drafted a bill that violates federal law,” replied Bradley.

Lawmakers can’t point to a precedent that supports the legislation as it stands. But it may soon be moot. The proposal is pending before the full Senate, but it is stuck in the House committee process—and may not pass this year.