By Jessica Hopper
When Helen and Jay Stassen’s 21-year-old son, Benjamin, committed suicide 19 months ago, he did not leave a note.
If it had been 20 years ago, the Stassens might have looked through diaries, letters or other personal items in an attempt to find clues as to why he decided to end his life. These days, however, young people tend not to keep things on paper; instead, their most intimate thoughts are likely to be online – in emails, social media posts and personal blogs.
So that’s where the Stassens went searching. They found themselves engaged in a conflict with Facebook and Google as they hunted for answers about their son’s death and the companies sought to honor their contracts with their users.
“We are reeling with the reality of being parents who not only have our son who has died, but a very difficult death on top of it which is not anything we ever saw coming, which has added to our desire to really want to know why,” said Helen Stassen from her home in Prescott, Wis.
The Stassens say that Benjamin, a college student, had hoped to be an entrepreneur one day and was a health food enthusiast who loved to play the drums and practice yoga. To keep his memory alive, they built a free library at a park near their home and their extended family helped get a bench named for him near the Mississippi River.
“Those have been experiences that have helped and have healed in tiny ways that are a contrast to the fight that we’ve been in,” Helen Stassen said.
Courtesy of the Stassen Family
The Stassen family is one of a growing number of families battling online companies to gain access to a deceased loved one’s digital assets.
Digital assets include email, social media accounts, digital photos and online banking accounts and records. The Stassens think Benjamin’s online life might provide a clue into their son’s last days and as the heirs of his estate, they feel they have a right to get access to his accounts.
“Social media is a major way 21-year-olds interact these days,” Jay Stassen said. “We thought maybe this could bring us some understanding, maybe some peace. We didn’t know, but we felt it was important to try to understand.”
A local judge recently granted the family a court order directing Facebook to give the Stassen family access to their son’s account. The court order says that the Stassens are the heirs to their son’s estate and are entitled to any of his assets, possessions or records, including the contents of his Facebook account.
Emails provided by the family show that Facebook has received the court order and it’s currently in their legal department. Legally, Facebook can appeal the court order or comply with it. When asked about the Stassen family’s court order, a Facebook spokesperson said that the company does not comment on specific cases.
Legal experts said that court orders can trump user agreements. Online companies’ user agreements are contracts with the user that usually guarantee privacy and prohibit or limit account access to others beside the user.
“If Facebook is doing business in a jurisdiction and the court orders them to do something, they pretty much have to do it or face the penalty. If they don’t follow a court order, they can be held in contempt of court,” said Peter Swire, a law professor at Ohio State University.
Swire, who served as Chief Counselor for Privacy in President Bill Clinton’s administration and as an adviser to President Barack Obama on privacy issues, said that online companies face a “patchwork of state laws” and are usually cautious when it comes to granting access to a deceased user’s account.
What happens to your Facebook account when you die?
“What happens if a 21-year-old had a safe deposit box at the bank, the answer is the safe deposit box belongs to his estate and whoever controls the estate gets to open the box,” Swire said. “In the physical world, it’s easy to tell if it’s someone’s parents or child who has the safe deposit key, it’s trickier for Facebook and Google. Some evil prankster might pretend that a person is dead and try to take control of the account, so the online companies are understandably careful before they turn over the account to someone who says they run the estate.”
Online companies such as Facebook say they are concerned with honoring their contracts with users which require them to protect their users’ privacy. It is possible that a deceased user may not have intended for his online accounts to be accessed by his loved ones after he died.
“I think it’s a good idea for sites not to have a blanket policy to hand this stuff over to survivors. This information is private and you assume that it’s private, you assume that your Facebook account is private, you assume that your email account is private,” said Rebecca Jeschke of the Electronic Frontier Foundation, a digital civil liberties group.
Jeschke said that the problem is that people often don’t know what their deceased loved one’s wanted to happen to their online accounts.
“What's really important is that your survivors know what it is that you want, to say to your spouse and parents, ‘No, you can't read my email after I die or yes, I want you to.’ I don't think I'm the only person that would be uncomfortable with the idea of someone reading my email after I pass,” Jeschke said.
Naomi Cahn,a law professor at George Washington University, said that there is “almost no binding legal precedent out there” when it comes to digital assets.
“It’s a concern of internet service providers being caught between privacy and the meaning of their contracts and being faced with a court order to which there could be quite severe penalties if they don’t comply with it. It’s something that lawyers, state legislatures, hopefully the federal government, hopefully the internet service providers are all starting to think more about as these issues become common,” Cahn said.
Are digital assets part of your estate?
Cahn said that current laws have yet to catch up with the digital age, leaving families like the Stassens in a frustrating limbo.
“When somebody dies, the person who is responsible for taking care of the individual’s asset is supposed to be complying with what the individual wanted and protecting the individual,” Cahn said. “Because so many people have not thought about this, we don’t know what the person actually wanted...we can all imagine what’s in internet accounts. There may certainly be cases where the person who died would not have wanted anyone to get anywhere near the person’s account.”
Only five states currently have estate laws that include digital assets -- Connecticut, Rhode Island, Oklahoma, Indiana and Idaho – and the laws vary among them. Some states’ statutes, for instance, just relate to email, with only Oklahoma and Idaho clearly including social networking and blogging as part of an estate.
“Legally it is unclear exactly what you can do in the 45 states -- and Washington, D.C. -- that do not have these laws that address this situation,” Cahn said. “Even in those states where there are laws, we’re still in the process of testing how those laws operate. They don’t cover all Internet accounts and the laws are new enough that they’re just in the process of being worked out.”
Cahn said that most people don’t think about what will happen to their online accounts when they die, but if they did, they would likely feel differently about different sorts of online accounts.
“Some of the ones that we expect to be passed on, like getting access to online bank account statements, doing online bill paying, those probably we would expect others to be able to take control over. Many of us probably think that once we die, our Facebook accounts should either be memorialized [left up for only friends to see] or deleted entirely,” Cahn said.
Internet companies such as Google, Yahoo and Facebook have taken the position that the user probably intended for the contents of his or her account to remain private and crafted user agreements to reflect this, Cahn said.
“They do assume that the user wants privacy, there’s all kinds of advice on passwords and password strength to make sure that there’ s no unauthorized use,” Cahn said. “One of the reasons we have passwords on our accounts, one of the reasons we get so outraged when there’s a hacking is we have certain expectations of privacy when we open accounts.”
There also are liability issues. Some states prohibit internet companies from disclosing information without the permission of the customer. With no clear definition of digital assets in most states, the companies then look to their user agreements and the laws of individual states when a user dies.
“Right now it’s kind of the Wild West in most states. The statutes don’t refer to any kind of digital asset or account,” said attorney Suzanne Walsh, who specializes in wills and estates.
Walsh is a commissioner to the Uniform Law Commission and chairs a committee that’s been formed to consider drafting a uniform law on digital assets that states could adopt.
Gene Hennig, one of Minnesota’s commissioners to the Uniform Law Commission, said that a court order is one of the few options families have in obtaining access to a loved one’s online account.
“You’ve got to hire lawyers. It’s time-consuming. Some people may go to all that trouble and it took forever to get the order and by the time they got it, the stuff had been destroyed. It’s just an unworkable and very inefficient way of doing things,” Hennig said.
Family fighting Facebook: ‘We’ll be patient, but persistent’
The Stassens, an attorney and librarian, are fortunate in that their professional skills are there to help them navigate the terrain of digital assets. In addition, they’ve connected with other families engaged in similar battles and lobbied their congressman for help. In the process, they’ve also obtained two court orders: one directed at Google and another at Facebook.
“Many people don’t have that knowledge, don’t have that experience and unless they have the financial means to hire an attorney to do this for them, they are very likely to feel stuck and not know what to do,” Jay Stassen said.
After submitting a court order to Google in September of last year, they received the contents of Benjamin’s Gmail account, but they are still working to recover access to Benjamin’s Facebook account. In April, they obtained a court order directing Facebook to give them access to Benjamin’s account.
“We’ll be patient, but persistent,” Helen Stassen said.
The Stassen family said that they plan to keep private any information they find from their son’s online accounts.
A spokesperson for Facebook said that their policies do not allow access to a dead user’s account.
“For privacy reasons, we do not allow others to access a deceased user’s account,” a Facebook spokesperson told NBC News. In addition, the spokesperson said, the company's policy prohibits them from commenting on the Stassen family's case or any other specific cases.
Facebook has two options for a dead user’s account, the spokesperson said. The first allows an account to be memorialized, which leaves the profile up so that friends and family can leave posts in remembrance, but restricts the profile and associated content to the Facebook "friends" that the deceased had while alive, the spokesperson said. A proof of death must be provided for an account to be memorialized. In some instances, Facebook allows family members to have an account deactivated.
Other companies have different policies regarding a deceased person’s online account. According to Google’s web site, in rare cases, they may provide the content of a deceased person’s account to an authorized representative of the person. Meanwhile, Yahoo says on its site that all accounts are non-transferable and it will delete an account when they receive a death certificate.
Courtesy of Peter Stassen
The Stassen family, though, say they don't want to memorialize or deactivate their son’s Facebook account until they have seen the full contents. The only way they’ve been able to see the public part of their son’s page is because he and his brother, Peter, were friends on Facebook.
Benjamin’s Facebook profile shows a smiling young man with photos showing him skiing with his family and enjoying a beer with his brother, Peter.
Peter Stassen said that it’s been a struggle to watch his parents try to obtain access to Benjamin’s account.
“It’s hard to fully reconcile how I feel about Facebook now,” said Peter Stassen, Benjamin’s brother. “None of the people on the Facebook side seem to have any realization that my parents are people, that they’re dealing with emotions and that they’re not just an account.”
Facebook’s policy prohibits them from commenting on the Stassen family’s case or any other specific cases, the spokesperson said.
“I think Facebook has to understand that when they push sharing of data, open sharing of data, they also have an obligation not only to be fair with the account owner during their lifetime, they have an obligation to be fair with the account owner after they’ve died,” Jay Stassen said.
How you can protect your digital assets
The growing murkiness over digital assets recently prompted the federal government to post a blog encouraging people to create social media wills.
And Professor Cahn said that people should discuss their online accounts with their loved ones and have a frank conversation about what they want to remain online, what they want to be deleted and what they want their loved ones to have access to.
“We’re in an era of uncertainty,” Cahn said. “You can certainly tell your loved ones what you want to have happen. What you have online that’s not private, you can set up a joint account.”
Cahn said couples should consider joint online bank accounts, for example. In addition, she said, people can include digital assets in their wills, but warns that wills eventually become public documents and that if you list passwords on the will, those will become accessible to the public.
A series of companies have also sprouted up, such as Entrustet and Legacy Locker, that allow you to come up with a plan for the life of your online accounts after you’re gone, Cahn said.
“As a society, we value the privacy of our online account and we want internet service providers to protect our privacy and that means not giving others access. If we thought about it, we might think differently after we die,” Cahn said.