, , , , , , ,

Since my presentation last month on technology and spiritual care, the subject has become one very dear to me.  I am still trying to get a bigger picture of its benefits and downside.  As such, the following article caught my eye.  I think there is still a need for diligence when it comes to uses of social media for daily socialization.  And if that is the case, counseling and providing help to others becomes requires an even greater sense of responsibility for those involved.  Otherwise, you get situations like the article describes.  This article’s focus is on legal issues related to both pre-death and post-death situations on Facebook.

Before Anthony “TJ” Cannata killed himself in mid-December, the 20-year-old uploaded a photograph to his Facebook page that showed him holding a gun to his mouth, an image that haunted the friends and family who flocked to his page to pay their respects after his death.

After Mr. Cannata’s death, his mother wanted the photo removed, but it was a month before Facebook took it down. “I was horrified,” said his mother, Robin Cannata, of Winchester, Calif.

As people’s online personas become an increasingly important part of their lives, families and friends are encountering confusion and frustration in trying to manage the Facebook, Twitter and email accounts of their deceased loved ones.

State probate laws, which govern how a deceased’s next of kin or estate executor can access things like property and bank accounts, generally weren’t designed with today’s online lives in mind. So, lawmakers in several states—including Nebraska and Oklahoma—have tried in recent years to tackle the complex question of who can manage the online presence of the deceased, and what legal authority they should have.

Nebraska state Sen. Burke Harr, who serves on a committee considering a bill making its way through the legislature, said dealing with someone’s digital affairs after death should differ little from handling other end-of-life matters.

But legal experts say that the terms of service users must agree to when they sign up with social-media sites, which typically dictate what happens to an account after the user dies, could take precedent over the state laws. An Oklahoma lawmaker involved in legislation on the topic says the risk is creating laws that are “toothless.”

Facebook, for example, has extensive user agreements and privacy policies that cite various state and federal laws, including the federal Electronic Communications Privacy Act, which generally forbids it from “providing access to any person who is not an account owner.”

When Facebook learns of a user’s death, the company’s policy is to put a user’s account in a memorialized state—essentially freezing in place the user’s content but still allowing friends to leave comments on the user’s page. Immediate family members or next of kin can request an account be terminated, or deleted, which requires documentation such as a death certificate.

It is also common, though, for friends or family to use deceased loved ones’ passwords to continue actively managing their accounts after their deaths, without the company’s knowledge.

Another social-media company, Twitter, says on its website that it can work with an authorized person to “have an account deactivated.” The policies of email providers often very, but in rare cases, some will provide account data to representatives of a deceased user.

On Dec. 18, after Mr. Cannata killed himself earlier that day, his mother’s boyfriend contacted Facebook to “report suicidal content” on his page, according to an email reviewed by The Wall Street Journal. Mr. Cannata’s mother emailed the company in mid-January with a link to an article in a local newspaper about the photo. Facebook removed the image Jan. 18.

“When the request was received from the user, the appropriate action was taken,” a Facebook spokesman said. “Out of respect for the privacy of the people who use our service, we can’t comment further.”

As lawmakers look to weigh in, Facebook spokesman Tucker Bounds said the company was “communicating directly with” them so they “better understand our site and why our current set of policies exist.” “We believe that it’s important to have constructive, ongoing conversations with lawmakers,” he said.

The Nebraska bill is modeled after recently passed laws in Oklahoma and Idaho, which give the executor of an estate, “when authorized,” the power “to take control of, conduct, or terminate” the online accounts of a deceased person, including social-networking, blogs and email sites. Connecticut, Indiana, and Rhode Island have previously passed laws giving the estate executors some authority to access electronic documents, such as emails, of the deceased.

In late January, the issue was taken up by the Uniform Law Commission, a national group of lawyers appointed by state governments that researches and drafts uniform state laws that can be adopted widely by state legislatures to address hot-button legal issues. The commission decided to form a committee to study the “digital assets” successor issue, which is complicated by privacy concerns and the lack of uniformity in policies among social-media companies.

When Tara Murphy, a 32-year-old from Eagan, Minn. died unexpectedly last August, she left behind a Facebook account with hundreds of friends and photographs, a site her parents hoped to actively manage after her death instead of keeping it as just a memorial.

But her mother, Pam Murphy, said Facebook was notified of her daughter’s death and converted her page into a memorial, leaving her parents unable to steward her online presence in cyberspace.

Other complications arise when the deceased user is a minor. When 15-year-old Eric Rash, of Crewe, Va., committed suicide a year ago, his parents, Diane and Ricky Rash, didn’t know his password, leaving them unable to access his account.

Looking for clues about their son’s death, Eric’s parents began lobbying Facebook to get his password. After roughly 10 months of wrangling, Facebook gave the parents a download of his account on compact disc, but wouldn’t divulge his password, citing its privacy policies and federal privacy laws.

“We were outraged because he was a minor,” Ms. Rash said. “As parents, you think you have control of them at least until they are of age.”

The family is continuing to lobby lawmakers to weigh in, especially as it relates to minors. “Social media has evolved faster than the law,” Ms. Rash said.

Ryan Kiesel, a former state lawmaker who helped craft Oklahoma’s digital-assets law in 2010, said finding a legislative solution that satisfies constituents and stands up to the user agreements they sign when they register is likely going to be difficult.

To get there, he said, what’s needed “is some sort of uniform law that accounts for the terms of these privacy policies, so we aren’t just creating a toothless tiger.”