A recently published case from the Mass. Appeals Court, Ajemian v. Yahoo!, deals with the unfortunate difficulties of Administrators gaining access to their deceased loved one's email accounts. Yahoo!'s contention in the Ajemian case is that the Stored Communications Act prohibits them from disclosing the contents of an email user's account. Next of kin are facing this issue more and more as social media accounts have strong privacy policies.
Google's Gmail policy offers a 2-step process wherein they may allow certain persons access to a deceased person's mail. Microsoft's (Hotmail) Next of Kin policy requires a significant amount of information and paper work—everything from photo ID of the executor to approximate date of account creation and last login.
Twitter has a policy of working with an authorized person to deactivate a deceased member's account, but the authorized person must already know the user name and password. Facebook has no policy and despite a court order in a recent Minnesota case, has not provided the grieving family access to their son's account.
Currently, 5 states have digital access recovery laws, Connecticut, Rhode Island, Oklahoma, Indiana and Idaho. The Uniform Law Commission is drafting the Uniform Power of Attorney Act, that will vest fiduciaries with at least the authority to manage and distribute digital assets, copy or delete digital assets, and access digital assets, but there is no telling which states will adopt it. In the meantime, taking care of your digital assets, from social media accounts to bank accounts, ebay, etc, should be included in your estate planning. The Missouri State Treasurer's office recommends keeping a VAIL letter (virtual asset instruction letter) , while Massachusetts has no such recommendations at this time.
