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State Statute Empowers Executors to Conduct Digital Identities of Deceased

By Dazza Greenwood, JD

Editor’s note: This is a guest post from our fellow panelists at SXSW Interactive. Dazza will join John and Evan at SXSW for the panel discussion, “You’re Dead. Your Data Isn’t. What Happens Now?“ Republished with permission from CIVICS.com.

In the lead-up to SXSW this year, in preparing to participate on a panel called “Your Dead, Your Data Isn’t: What Happens Now”, my fellow panelists and I spent considerable time discussing a new law that is truly a first in the US. House bill 2800, recently enacted into law in the state of Oklahoma, authorized the Executor or Administrator of an estate to conduct or terminate the social media and certain other digital accounts of the deceased. The accounts are a key aspect of the digital identities of the deceased, and the provisions of this statute raise many questions of law, commercial practice and public policy.

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Specifically, the statute applies to any accounts of a deceased person on any
1. social networking site,
2. micro blogging or short message service website, or
3. email service website

There is no definitions section of this very brief bill, however, the words chosen are in common usage. The meanings, however, are likely to change over the years (possibly even months) due to the dynamic pace of innovation in this sector of the economy.

Interestingly, the word “site” is used to modify the social networking services, while the word “website” is used to modify the micro blogging, short message service and email service categories. It is entirely possible this is a distinction without a difference, however, my friend Dave Wieneke, of the renown blog UsefulArts.US, has observed many times that the direction of the web is away from traditional “websites” and toward services, especially those embedded within social media sites. If it should happen that the commercial and technological practices evolve past the usefulness of the word “website” during the lifetime of this statute, it is likely that the more inclusive term “site” will survive longer and apply to a greater array of services, widgets, facets and other atomic structures of next web.

Wikipedia indicates the main “social networking services” include: Facebook and Twitter widely used worldwide; MySpace and LinkedIn being the most widely used in North America; Nexopia (mostly in Canada); Bebo, VKontakte, Hi5, Hyves (mostly in The Netherlands), StudiVZ (mostly in Germany), iWiW (mostly in Hungary), Tuenti (mostly in Spain), Nasza-Klasa (mostly in Poland), Decayenne, Tagged, XING,[4] Badoo[5] and Skyrock in parts of Europe; Orkut and Hi5 in South America, India and Central America; and Friendster, Mixi, Multiply, Orkut, Wretch, renren and Cyworld in Asia and the Pacific Islands and Twitter, Facebook, Orkut and LinkedIn in India.

The second category, “micro blogging or short message service website” calls twitter to mind most prominently. The phrase “short message service” typically refers to a mobile phone function, however the modifier “website” brings the technology back to a twitter model. To the extent telephone carriers open their SMS features through a portal or other web accessible service, perhaps that could be construed as falling under this section and therefore potentially under the scope of this statute.

The third catagory, “any email service website” suggests yahoo mail, gmail, hotmail and other such web-based e-mail services. Interestingly, many employers, universities and other organizations provide web-based e-mail services to their employees, students, customers and other associates. The possibly applicability in those contests remains to be seen.

The phrase “where otherwise authorized” is somewhat confusing. Perhaps it means where the Executor or Administrator has been authorized to assume ownership and control of digital accounts in the testamentary instrument, then the statute empowers and legislatively ensures the authority to so act. However, if a provision of the will or testamentary trust indicates the Executor explicitly does not have authority to use or terminate some of all of the listed digital identities, accounts and/or services, then perhaps the statute would not apply, because the Executor would not have been “otherwise authorized” to perform those functions. Statutory construction and interpretation of the legislation of the state of Oklahoma is not well known to me – if anybody has thoughts on the meaning of this phrase in the statute, please contact me with your perspective.

This statute, while providing some common sense clarity and a reasonable solution to the growing conundrum of what to do with digital identities of a deceased, also raises a number of unresolved issues. We can expect more statutes on a state by state basis, while federal agencies and local authorities also struggle to catch up to the new information age dimensions of constituents subject to the public sector’s traditional governance and regulatory roles. Meanwhile, some forward looking and proactive work by individuals, in their roles as consumers, students, patients, citizens and account holders of all types, would do well to begin thinking about what they want to happen to their own digital identities upon and after death.

Photo of Dazza GreenwoodDaniel “Dazza” Greenwood has focused his career on creating legislation and policy to support use of the Internet and enable online identity. He was previously a lecturer and researcher of law and technology at MIT and the MIT Media Lab where he developed identity, privacy, transactional and architectural solutions. Dazza runs the consultancy CIVICS.com, has led several open standards efforts and currently is helping to start up the eCitizen Foundation.

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