Article on Posthumous Privacy Right

Melissa Gaied recently published a Note entitled, Data After Death: An Examination into Heirs’ Access to a Decedent’s Private Online Account, 49 Suffolk U. L. Rev. 281 (2016). Provided below is a summary of the Note:

In the Internet age, protecting the privacy interests of individuals who predecease their digital accounts has resulted in ongoing legal uncertainty. Much of the ambiguity stems from inconsistent regulation of digital privacy by federal and state governments, as well as private entities. On one hand, federal law prohibits Internet service providers from disclosing content without owner consent or government order. On the other hand, state judges grant court orders to grieving families, demanding that service providers, such as Facebook and Yahoo!, allow access to the decedent’s account. Providers then argue that such disclosure orders constitute a breach of contract because of preexisting privacy terms between the user and the provider.

Further complicating the matter, some states have adopted legislation allowing a decedent’s digital content to pass to his or her heir upon death — similar to the treatment of personal property. Delaware recently enacted the most sweeping legislation, granting family members, executors, and heirs total control over the decedent’s digital accounts — including email, social media, and cloud storage — the same way it grants rights over physical documents. Despite such legislation, web-providers continue to remain reluctant to disclose user content to grieving families.

In light of conflicting regulations, the right to privacy may, in fact, evolve as a posthumous right, similar to the evolution of the right to publicity and copyright. Although the event of death deprives a person of his or her privacy right, such deprivation becomes exceedingly difficult to defend in the context of personal online data because such data is immortal by nature. The Supreme Court acknowledged that digital content triggers greater privacy concerns due to the qualitative and quantitative nature of digital data. Nonetheless, American law, in comparison to other developed countries, does not traditionally value the dignity of the dead.

To understand the state of the controversy, this Note will begin with a historical discussion of the constitutional right to privacy and its evolution as it relates to digital privacy. Further, this Note will discuss how federal, state, and private actors regulate digital privacy and this Note will posit that a discrepancy exists among such regulations. This Note will then discuss how diverging regulations might trigger a debate in favor of a posthumous right to privacy, especially due to the lack of uniform regulation by federal, state, and private actors. The Analysis section will examine the evolution of copyright and the right of publicity into posthumous rights and the strategic use of such doctrines to preserve privacy after death. Finally, this Note will conclude with considerations of the future of a posthumous privacy right.