Facebook after Death

 By Michael Goodyear

With nearly two billion users, Facebook is firmly entrenched in 21st century life. A person’s Facebook account serves as a digital doppelgänger: their thoughts, interests, pictures, friends, and memories are available in perpetuity. But what happens to the digital profile when its physical owner dies? With physical property, there is often a presumed heir. A Facebook account, even if it doesn’t have monetary value, can have significant emotional value—after all, it is a record of life, a sense of personality and who the deceased individual was. Should a parent, significant other, sibling, or someone else have access to a Facebook account after the owner has passed away?

No, said a Berlin court yesterday.  A 15-year-old girl had been killed by a subway train back in 2012. Her parents wanted to access her Facebook to determine whether she had committed suicide by looking at her posts and reading her chats. The parents had petitioned Facebook to grant them access to the account, but when it was denied the parents went to the German courts.

Back in 2015, a regional court had ruled in favor of the parents, classifying Facebook messages and posts as similar to letters and diaries, which can be inherited. But the court of appeals instead looked to the privacy of those with whom the deceased girl had communicated. Granting her parents access to her account would compromise those other individuals’ constitutional right to privacy. The case could be appealed all the way to Germany’s Federal Court of Justice.

But for now, Facebook’s policies on a deceased person’s account are maintained. There are actually only three options for a deceased person’s Facebook account: 1) leaving it, 2) memorializing it, and 3) removing it. Facebook has a special form for a deceased person’s account, but this is only for memorializing or removing the account, not accessing it. Facebook’s policy is to not allow anyone other than the account user to log in to their account, including the family of the deceased.

But while Facebook does not turn over account access to family members, it does respond to requests from the government, including access to posts and messages if the government supplies a warrant. This means that there is a threshold where even privacy is outweighed by a greater goal.

Back in 2005, the family of a deceased marine, Justin Ellsworth, was granted accessed to his Yahoo email account after an Oakland County probate judge ordered Yahoo to grant them access. Cybersecurity law experts Julie E. Cohen of Georgetown University Law Center and Henry H. Perritt, Jr., of Chicago-Kent College of Law argued that emails were like other types of information or property routinely accessed or transferred after someone’s death and that access should be granted to survivors.

But seven years later in 2012, a California district court quashed a subpoena by a deceased individual’s family members to have access to the contents of her Facebook account. Sahar Daftary had died falling from the 12th floor of an apartment building in Manchester, England. Similar to the German case, her family wanted to know whether it was an unfortunate accident or suicide. The court upheld Facebook’s policy, noting that the Stored Communications Act, 18 U.S.C. §§ 2701-2712, protected the contents of Daftary’s Facebook account. The court did note that Facebook could turn over the contents voluntarily, but that would be unlikely given Facebook’s policy on the accounts of deceased persons.

“I think it’s a good idea for sites not to have a blanket policy to hand this stuff over to survivors.  This information is private and you assume that it’s private, you assume that your Facebook account is private, you assume that your email account is private,” said Rebecca Jeschke of the Electronic Frontier Foundation.

While someone’s public posts on Facebook were intended for others’ eyes, their private messages were not. Even in the case of children, it is unlikely that they would want their parents reading their private messages when they were alive. Why should it be different now that they are deceased? In addition to the deceased individual themselves, the privacy of those with whom they communicated would also be at stake. The German appeals court’s decision supports a broader point: a loved one’s death is tragic, but even it should not trump the constitutional right to privacy.

Michael Goodyear, who has a BA in History and Near Eastern Languages and Civilizations from the University of Chicago, is part of the ISLAT team.