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NM law entangles inheritance of digital property

Five-and-a-half years ago in Berlin, a 15-year-old girl was hit by a subway train. She died instantly. Her distraught parents struggled to come to terms with her death, and in particular sought to understand whether it was an accident or suicide.

The website of the Alliance of Hope for suicide survivors describes “the shock, excruciating grief and complex emotions that accompany the loss of a loved one to suicide.” Survivors experience “what may well be the worst pain you will ever feel.” For the German parents, that pain was cut through with whipsawing ambiguity. Perhaps she just slipped and fell, after all?

They hoped to find a clue in their daughter’s Facebook chats. They had her user name and password, but Facebook wouldn’t let them log in. That was in keeping with company policy. Facebook’s English-language help pages explain that, as soon as the company learns of a user’s passing, the person’s account is “memorialized.” When that happens, the word “remembering” is added next to his or her name. The account holder’s privacy settings remain effective, but the account is locked. No one can log in to it. Not even a deceased teenager’s only heirs.

The German parents sued to gain access to her account. Facebook fought back stubbornly. Eventually, the litigation reached Germany’s highest court, where Facebook argued that it was fighting to protect the privacy of the daughter’s friends, the people with whom she chatted.

Now, admittedly, Facebook has a somewhat complicated relationship with its users’ privacy. As reported by The Washington Post in April, the company’s chief technology officer “told British lawmakers … that it never read the terms and conditions for an app that ultimately allowed Cambridge Analytica to access 87 million users’ names, ‘likes’ and other personal information.” Just the other day, Facebook suspended another data-mining firm, Crimson Hexagon, for suspected misuse of data. Crimson Hexagon vigorously denies harvesting private data, although that only raises the question of what is truly private on the web.

Most office workers are familiar with the dummy thermostats some companies install to give workers a comforting illusion of control. I’ve often wondered if the privacy settings on social media work the same way, creating an illusion without delivering on the reality. If the social media giants cheated, how would we know? Who could stop them? And how much money would they make?

The German high court didn’t buy Facebook’s concerns about the privacy of the dead girl’s friends. Those friends were in the same position as anybody who sends a private letter, and the girl’s parents were in the position of any other heir, who gains ownership of letters, diaries and everything else a deceased person leaves behind. In the German court’s analysis, as reported in Stern, it wasn’t even a difficult legal issue. A German heir inherits everything, from houses and cars to bank accounts and chat transcripts.

Not so in New Mexico. Last year, our Legislature enacted the Revised Uniform Fiduciary Access to Digital Assets Act, a package of 18 statutes governing the inheritance of digital property, including photos, documents and social media accounts. Generally speaking, uniform acts are a good thing. When the same law is enacted in many states, companies can expect the same treatment across the country and courts profit from one another’s experience. But the Digital Assets Act is strangely one-sided, allowing online platforms to demand sworn statements from heirs for no particular reason, and to impose fees with no set limit, and otherwise to act at their “sole discretion.”

The act provides that if a user clicks on a special form provided by an online platform, that click overrides the person’s last will and testament. Wills are usually the product of careful thought and discussion, which is not the usual state of mind with which we click on pop-up boxes blocking our access to a website. The fact that the click overrules the will is a pretty good indication that the Digital Assets Act was written by Silicon Valley for Silicon Valley, designed to let bots make all the really important judgments about our digital legacies.

One section of the Digital Assets Act deals specifically with electronic communications, such as chats. If the deceased executed a legal document explicitly granting access to his or her heirs, the online platform must comply. But who does that? The only other option is a court order. So a New Mexico family in the nightmarish position of the German parents could, probably, obtain access to their deceased child’s online communications, but only by cajoling a judge into granting them permission. May you never find yourself in that position.

Joel Jacobsen is an author who recently retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal.column.tips@gmail.com”>href=”http://legal.column.tip”>legal.column.tips@gmail.com

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