Protecting Oregonians' privacy in life – and death

By Megan Schrader of Portland, Oregon. Megan is TechNet’s Northwest Executive Director.

What happens to our digital communications when we die? As technology is increasingly integrated into the daily human experience, what becomes of a person’s online life in the event of their death or incapacitation is an issue that Oregon lawmakers are facing this legislative session.

At issue: under what circumstances can an executor of a person’s estate gain access to the contents of the broad array of personal, private digital communications after a person dies – including one’s emails, chats, social media messages, online dating profiles, and other conversations with family, friends, doctors and clergy.

Current federal law, the Electronic Communications Privacy Act (ECPA), protects the privacy of our online communication content when we are living and after we die. Without express consent from the sender or recipient, or a court order or warrant, contents of online communications cannot be released after death or incapacitation.

How do policymakers resolve an executor’s need to access certain online records – such as determining where the deceased held a bank account – to close an estate without violating federal law, the privacy of the deceased, and the privacy of everyone who communicated with that person?

Oregon House Bill 2647, the Privacy Expectation Afterlife and Choices Act (PEAC), supported by technology companies, privacy and consumer protection groups and low-income advocates, protects user choices and keeps privacy as the default. If a person indicates what is to be done with an account in a will or through online user tools, such as Google Inactive Account Manager, that choice is respected.

If no such choice was made, an executor can gain access to digital records, but only the so-called outside of the envelope. This means that the online communication provider will release information related to whom a person has received emails from, for example the name of their bank or accountant, but will not release the content of those emails. This ensures the privacy of the deceased and the privacy of the people they have communicated with is maintained. In other words, under HB 2647 privacy is paramount and unless a person makes alternate and specific arrangements, privacy choices in life are to continue in death.

A competing bill moving through the legislature, Senate Bill 369, the Uniform Fiduciary Access to Digital Assets Act (UFADAA) approaches this issue very differently. This bill sets exposure of communication as the default unless a person has hired an attorney to state in a will what is to be done with each of their digital communication accounts. Without privacy protections outlined in a will, the estate executor receives unfettered access to digital communications upon the individual’s death.

This approach not only violates ECPA, but it is a flagrant abuse and violation of an individual’s privacy choices. By preserving the integrity of online communications in the afterlife, Oregon has an opportunity to lead the nation on digital privacy. TechNet urges Oregon lawmakers to respect the choices people make regarding their digital lives and pass HB 2647 this session.

March 20, 2015 Posted in guest column.