By Michael Gerstein
Associated Press
LANSING (AP) — A new state law offers ways for certain people to access the online storehouse of memories in Facebook and Google accounts after the owner dies, but the bill sponsor says it wasn’t easy to get tech companies and lawyers to agree on the rules.
While mega tech corporations like Google and Facebook tout privacy concerns, lawyers representing families or loved ones fought to access electronic communications like emails and other digital property.
It’s a battle between privacy and access, a battle fought in ink, pixels and words, by lawyers huddled around desks determining what happens to someone’s digital property or records once the creator can’t personally offer it up.
“For the last few years, there’s been kind of this war going on,” said Todd Tennis, a lobbyist who testified before a House committee reviewing the legislation on behalf of the Elder Law and Disability Rights section of the State Bar of Michigan.
Estate lawyers wanted to make it easier for those appointed to manage someone’s property after they die or become incapacitated to be able to access all those memories, including emails and photos stored online via Google or Facebook accounts. But tech companies said they want to maintain certain privacy standards central to their internal policies.
“It wasn’t easy. This has been worked on for a couple years,” said Republican Rep. Anthony Forlini, of Harrison Township. “This is gonna affect most people’s lives more than just about anything we’ve done, and most people don’t understand that.”
Forlini credits himself for getting the lawyers — including representatives from Google and Apple — to duke it out until they could compromise.
The Michigan law is based largely off of Uniform Law Commission model legislation, which has been endorsed by Google, Facebook, the National Academy of Elder Law Attorneys, the
Center for Democracy and Technology and the Association of American Retired Persons.
“Google places a premium on privacy and federal law limits what we can do, but there has to be some way of providing necessary information under certain conditions that still honors the intent of the user through tools, such as Google’s Inactive Account Manager, or a legal framework for obtaining some information,” a Google spokesperson wrote in an email to The Associated Press. “We think bills such as the Uniform Law Commission’s model bill and Michigan’s new law strike the right balance between the needs of the executor and the privacy expectations of the user.”
Seven other states have enacted versions of the model legislation, while 20 more states introduced some form of the legislation this year.
But if you want to log into someone’s social media account or see their emails, the owner should be explicit about what can be accessed, said Huntington Woods lawyer Howard Collens. He also testified in committee on behalf of the Elder Law and Disability Rights section of the State Bar of Michigan.
Unless the owner explicitly grants access to view email “content,” people might only see what’s called a “catalog” of information, which is basically a list showing the sender, recipient, date and time of an email. The user should be explicit in an online agreement, will or other legal document if they want to grant broad access, Collens said. And what the user states in an online agreement takes legal precedence over whatever they have in their will if they conflict.
Collens said the act grants “less access than people might expect,” but that before, “It was like the Wild West. There was no structure.
“Because this is brand new, we’re still gonna be figuring this out,” he said. “And some of it will work terrifically well, and some of it will need to get modified.”
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