Facebook, Death & Missing Passwords

Tragically, in January, 2011, a family in Virginia lost their teenaged son to suicide and looked to his Facebook account for some answers.

A quiet, but seemingly happy 15 year old, Eric Rash shot himself in a field in Nottoway County, Virginia. He left his family a note apologizing, but gave no answers to the big, haunting question of “why?”

As their grief gave way to despair, Eric’s family craved more information. They wondered if he was a silent victim of bullying but no one could shed any light on this.  An avid user of Facebook, the family wanted to check his account to seek help through his wide network of Facebook friends, to check his incoming and outgoing “messages” – all to see if he was a victim of cyber-bullying.

The problem was the Rash family had no idea if Eric’s password was written down or its location.

The family, through their lawyer, reached out to Facebook administrators for help, but the executives at Facebook were unable and unwilling to provide this password to the family due to strict privacy policies. If Eric hadn’t written down his username and password, they’d have to have their lawyer get a court order to legally force Facebook to comply with their request. After legal proceedings and attorney’s fees they eventually were provided with a CD of all of Eric’s Facebook transmissions and were left to their grief and healing.

In an even more horrific event, a very disturbed 20 year old killed himself, and when friends and family went to his Facebook page to pay respects, he had downloaded an image of himself holding the barrel of a gun inside his mouth. An emotionally distraught mother contacted Facebook to have the image immediately removed, only to face the same hurdle. She didn’t know his password and Facebook’s privacy policy prevents “providing access to any person who is not an account owner.”

The photo only came down one month after TJ Cannata’s suicide.

This is not to slam Facebook. There is a larger concern here regarding social media, e-commerce, password protected access and unexpected deaths.

Beyond teenage suicide, consider this dilemma. Your spouse travels a great bit on business. After a tragic accident, your loved one is gone. He did all the online banking, paid the mortgage and all utilities online, the car payment, as well as the online monthly financial planning.

Also, he had tens of thousands of Hilton Hotel points, and so many millions of frequent flier miles on Delta you could fly around the earth in first class a few times over. Even family photos and tax documents were saved on websites.

All of these online accounts had separate usernames and passwords with various requirements for length of password, some with uppercase letters, some with numbers within them, some with minimum character requirements. You knew your partner always used the word “mugshot” but he ended up using that with a dozen other permutations as password requirements grew for various websites. Despite tearing the house apart, there is no hint of written passwords or usernames for the dozen of online services he regularly used.

In this hypothetical, this widow cannot access anything, including their marital banking accounts to pay regular, monthly bills.

You now see the problem: Social media and the internet in general has been around long enough now to change the way we live our lives, but not long enough to be fully integrated into most future estate planning.

Many lawyers, myself included, have begun to advise clients young and old, that when they are planning their estates and having a Will prepared, to include in the envelope with the original Wills a list of what is now called “digital assets” for both spouses and family.  This form would include a list of digital online accounts: each website address, username, password and even “safety words” that might try to trip up the guest user to ensure safe entry.  This list would need to be updated, if not monthly, certainly yearly since accounts change as do passwords.

As a lawyer most of my clients want to avoid probate, i.e., the legal process where a court must oversee a list of assets and debts and then ultimately distribute the assets to beneficiaries. If you treat your digital assets like stock certificates, title to a car or a deed to a house, and provide available access to your spouse, it will ensure a smoother transition from one’s death to the survivor. No court order would be needed to get the survivor information which is so vital to access accounts when they are already written down.

The internet continues to change the world from the macro to the micro. From international political and religious issues, to the way we pay our bills or even the way we turn on our home alarm system through remote devices.  Ultimately it’s a very good thing, but we need to continue to stay ahead of the technological curve and learn to integrate it into existing legal and social constructs.


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