Article on Covering Your Digital Assets
Matt Borden recently published an article entitled, Covering Your Digital Assets: Why the Stored Communications Act Stands in the Way of Digital Inheritance, 75 Ohio St. L.J. 405-446 (2014). Provided below is the introduction of the article:
The Internet [is] the first thing that humanity has built that humanity doesn’t understand, the largest experiment in anarchy that we have ever had.1
It is very difficult to regulate and craft legislation to manage a problem that no one fully understands. Nonetheless, the juggernaut that society has come to know as the World Wide Web has come to be managed by a myriad of complex and outdated state, national, and international laws.2 Similarly, social media has emerged over the past decade as the largest use of the internet and is also largely not understood.3 Since social media is a subset of the World Wide Web, it too is regulated by the same tangle of state, national, and international laws.4 Social media and the internet have created remarkable advances in society that have divided generations—one raised with a mouse in hand and one who has never, and may never, fully grasp the technology’s reach. And yet these two generations, separated by the rapid and largely unknown expansion of information and data, must equally confront the digital inheritance problem.
In the realm of inheritance, the intersection of death, cyberspace, and outdated statutes has highlighted one of the many misunderstood issues about the modern internet and social media: what happens to one’s social media and email accounts and digital content when she dies? Do heirs have the right to access old Facebook accounts and email accounts? Do they have a right to use them? These questions are complicated by the twist of federal legislation regulating internet privacy, most notably the Stored Communications Act (SCA).5 The SCA, a subsection of the Electronic Communications Privacy Act (ECPA),6 which originally regulated the interception of electronic communications by federal law enforcement agencies, has encouraged social media and email providers to adopt strict provisions regarding who may access a deceased user’s account after death.7 Thus, even though the SCA was originally drafted to inhibit illegal wiretaps,8 it now stands as a barrier to digital inheritance, a purpose which is outside its original scope and conflicts with traditional state approaches to inheritance.
This Note explores how the statutory scheme of the Stored Communications Act interferes with the transfer of digital assets and content after death. Part II lays out three cases that illustrate the SCA’s effect on digital inheritance. Part III examines the history of the SCA and what activity the Act regulates. Part IV explores how the SCA has subsequently influenced the privacy policies of social media and email providers, which prevents heirs, beneficiaries, and estate fiduciaries from accessing the accounts or content of deceased users. Part V explains why allowing digital inheritance is beneficial for society. Finally, Part VI advocates for an amendment to the SCA that would include an exception for parties in digital estates, namely heirs, beneficiaries, and estates fiduciaries, considers implications for such an amendment, and explores how other solutions do not adequately address the issue of SCA interference in digital inheritance.