Proposed Legislation Protects Digital Privacy

According to legislation passed by the 2015 Virginia General Assembly, a person’s right to privacy in the digital realm extends beyond death. 

The Privacy Expectation Afterlife and Choices Act is the first of its kind in the country, and aims to assure that a person ‘s electronic footprint remains off-limits after death except under very strictly controlled circumstances. 

Delaware Republican Jay Leftwich proposed the original legislation, which would have granted the executor of an estate almost blanket access to the deceased’s email and other electronic accounts.  While estate attorneys supported the legislation, lobbyists for online service providers were critical, warning that it would run afoul of their privacy policies.

The online lobbyists cast their lot with a rival measure offered by Senator Mark Obenshain; his bill began with the premise that people rightly expect their electronic communications to remain private upon death. 

Leftwich and Obenshain subsequently huddled with lobbyists to obtain a compromise; a bill that passed the last day of the session.  “We went through probably 20 different drafts,” Obenshain said.  The final version gives an executor access to the “envelope” of information about the deceased’s online accounts for the 18 months before his or her death.  This allows the executor to determine whether the deceased person received regular emails form a credit card company, bank, or investment brokerage and then to contact those institutions to settle the accounts. 

See Bill Sizemore, Va. Legislation Seeks to Protect Digital Privacy After Death, The News Tribune, March 7, 2015.