BOB GARFIELD: Sorry, but I’ve got to start this segment with a bleak bit of news. We’re all gonna die. But ‘til then we’re all gonna Instagram, Facebook, tweet and blog. Trouble is, our online legacies do not automatically revert to the control of our heirs, who are often frustrated, or worse, when they can’t access the digital property of their dearly departed. A group of volunteers called the Uniform Law Commission is trying to sort this out with model legislation called the Fiduciary Access to Digital Assets Act or FADA. The goal is to give executors and other legal proxies access to files created by the deceased. Lawyer Suzanne Brown Walsh is the chair of FADA, which would liberate Facebook and other services from existing privacy restrictions.
SUZANNE BROWN WALSH: Providers aren't allowed to disclose communications content to family members or personal representatives, so our act seeks to give fiduciaries access to that protected communications content.
BOB GARFIELD: So when I die, what happens to my Facebook account?
SUZANNE BROWN WALSH: Well, nothing happens, until someone tells Facebook that you’ve died, and we’ve all heard the statistic that there are over 30 million Facebook accounts that belong to the deceased. Facebook does have a procedure for memorialization that allows a family member or someone with authority to notify Facebook and memorialize your account.
BOB GARFIELD: Which means what, that it, it stays up there but nobody can fiddle with it?
SUZANNE BROWN WALSH: That's correct. But there isn’t a procedure for ongoing control, and that’s been the rub for the family members. Some family members want access to more than the publicly-available content, particularly those with family members who’ve died suddenly and without explanation.
BOB GARFIELD: And then just the ephemera of life stored in the cloud by Facebook, let’s say, photos and videos and other memories that next of kin have no access to when, let’s say, a child dies.
SUZANNE BROWN WALSH: That's right, Bob. And, in many cases, the assets with sentimental value are the most important ones to families.
BOB GARFIELD: Give me some horror stories of next of kin who have felt deprived of what is due to them.
SUZANNE BROWN WALSH: The one incident I’ve had in my practice involved the adult child of an 85-year-old who controlled her family’s finances, and she passed before her husband and not a single person in the family had access to the passwords and the financial information which was all on her computer. We have heard stories in our drafting committee of businesses which have failed, guardians acting for incapables who’ve needed to send invoices out to keep money coming in to pay hospital bills.
BOB GARFIELD: Some people their living on the internet, producing content of various kinds. Does the conflict between survivor's rights and privacy affect assets that actually have a significant financial value, as well? I mean, is there money at stake in this question?
SUZANNE BROWN WALSH: The example we've consistently used in our drafting committee discussion is my great American novel that I'm writing in the evening and I'm uploading to Google Docs or some sort of cloud-based storage account. The famous example would be Stieg Larsson who wrote The Girl with the Dragon Tattoo trilogy. If I were him and I were drafting my novel and I kept uploading it and it was almost finished and I didn't leave anyone a copy on a hard drive or printed, my personal representative in my family would need to access that manuscript, capture the value and then sell the manuscript to the publisher.
BOB GARFIELD: Let's just say that among the ways I use the internet is to carry on a secret life. I'm doing that because I don't want the people in my actual flesh-and-blood life to know about it. Then I am hit by a milk truck and I’m dead. All of a sudden the executor of the estate can go and share in my secrets that I don't want revealed. Will the law that you've drafted address that situation?
SUZANNE BROWN WALSH: Absolutely. We’ve coined a phrase for it. We’ve called it “digital death.” For example, I can draft a document that says: hands off of this, it’s private. And our act says that’s perfectly fine.
BOB GARFIELD: Is there another side [LAUGHS] on this that is going to attempt to stymie your efforts with proposed legislation of its own that goes in an entirely different direction?
SUZANNE BROWN WALSH: We had some providers who actively participated in our work, attended all of our meetings, some of them parted ways with us because they disagreed with some of the decisions we made in drafting our act. There’s a couple of things. Number one, we have that provision that says you can't bury something in a “terms of service agreement” that prohibits fiduciary access. They would like to do that. There’s a cost, they say, associated with an upfront opt out. They do not want our act to require provider compliance because they argue the Federal Privacy Law does not mandate disclosure. So their request was that our statute be effectively optional.
BOB GARFIELD: Now, you are not legislators. This is a template. It’s sample legislation that you're going to put in the hands of state legislatures around the country and hope that they enact verbatim. But, of course, that won't happen 50 times. What will happen with this proposed law?
SUZANNE BROWN WALSH: What typically happens is groups of lawyers who practice in this area in each state convene, review the uniform legislation, adjust it as needed to state law and then find a sponsor and propose it. We’ve been fortunate. We have members of the drafting committee who are from state bar groups who’ve actually come to the meetings, many of them who track what we do. So I know that there are probably half a dozen to a dozen groups who are waiting for our final product and hope to propose it.
BOB GARFIELD: All right, Suzanne, thank you so much.
SUZANNE BROWN WALSH: Thank you.
BOB GARFIELD: Suzanne Brown Walsh is the chair of the Fiduciary Access To Digital Assets Act, with the Uniform Law Commission. She’s also a principal attorney at Cummings & Lockwood's Private Clients Group in West Hartford, Connecticut.
