People spend an increasing part of their lives using Facebook and other online social networking sites. However, virtually no law regulates what happens to a person’s online existence after his or her death. This is true even though individuals have privacy interests in materials they post to social networking sites; such sites are repositories of intellectual property, as well as materials important to family members and friends; and historians of the future will depend upon digital archives to reconstruct the past. In the absence of legal regulation, social networking sites determine on their own what, if anything, to do with a deceased user’s account and the materials the user posted to the site. Yet allowing social networking sites to set their own policies with respect to decedents’ accounts does not adequately protect the individual and collective interests at stake. The law, particularly federal law, can and should play a stronger role in regulating social networking sites and in determining the contours of our digital afterlives.
More than one billion people currently use social networking sites. They will all die. As people spend an increasing part of their lives in online communities, what happens to a person’s online existence after his or her death is of increased importance. For one thing, individuals have privacy interests in materials they post to social networking sites. For another, such sites are the repositories of photographs and other intellectual property. In addition, a social networking site may hold materials important to family members and friends of the deceased. Further, when we post to Facebook instead of writing diaries and letters, historians of the future will depend upon digital archives to reconstruct the past.
There is virtually no law that determines how a decedent’s account at a social networking site is to be handled. In the absence of any governing legal rules, social networking sites are in the midst of figuring out on their own what, if anything, to do with a deceased user’s account and materials the user posted to the site. With more than 800 million users, Facebook is the largest of the social networking sites. Since it launched in early 2004, Facebook has taken different approaches to handling the accounts of deceased users. Currently, Facebook “memorializes” a deceased user’s Facebook page. This allows confirmed friends of the decedent to post comments to the page, with the idea that the page will serve as a tribute site to the decedent. Memorialization, however, deactivates access to other materials, notably those posted by the account holder during his or her life and previously accessible to the decedent’sfriends. Facebook users have registered a variety of complaints about the company’s handling of deceased users’ accounts. For example, some users would like to be able to determine in advance what will happen to their own Facebook pages when they die. Friends and family members of deceased Facebook users have complained that memorialization removes too much content from the decedent’s page and expressed the desire to have continued access to everything the deceased user posted during life. On the other hand, memorialization has also been criticized for providing a forum for commentary that lingers in cyberspace and remains associated with the deceased user’s name.
Drawing particularly upon the experience with Facebook’s treatment of deceased users’ accounts, this Article examines whether and how the law should play a greater role in regulating our digital afterlives. Part I provides an overview of social networking sites and identifies the individual and collective interests that these sites implicate. Part II examines Facebook’s approach to deceased users’ accounts. It also discusses briefly the policies of other social networking sites, as well as those of other types of online services. Part II then turns to reactions among users to Facebook’s policy and some of the difficulties that the policy has created. Part III discusses the small number of laws that govern the disposition of a deceased user’s social networking account and identifies their shortcomings. Part IV offers some proposals for regulating a deceased user’s account, shows how these proposals could be implemented, and discusses their benefits.