Big Tech Owns You After Death, Too
If you think Big Tech has a tight hold on your attention and your wallet now, just wait until you pass away. On average, Americans value their digital assets—stuff like photo libraries, social media profiles, and blog posts—at $54,722. Yet, there’s a chance that all that value will disappear when you die. You’d think that users could easily make sure that those digital assets, like physical ones, would be passed down to their loved ones upon their death. The reality is that Big Tech companies do their darndest to control every piece of data, even when you’re in the grave.
Most states have passed a version of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), with the intent of making it easier for fiduciaries, like estate executors, to “manage” the digital assets of the deceased. RUFADAA, though, has failed to help loved ones obtain these digital assets, even as they are rapidly becoming perhaps even more valuable than physical assets. States originally sought to pass a Uniform Fiduciary Access to Digital Access Act (UFADAA), authored by the Uniform Law Commission. This predecessor to RUFADAA, though, worried Big Tech, so they fought back. And they succeeded in watering the act down.
When Big Tech learned that UFADAA would allow fiduciaries to access digital assets in the same way they can access physical ones, they made sure it failed. NetChoice, a trade association of online businesses, defended their efforts to quash UFADAA as a way to protect users’ privacy. They worried that absent higher barriers to access a deceased user’s account, the odds of a user having information they sought to keep private being disclosed would be too high. It is more likely, though, that NetChoice wanted to shift more of the administrative burden of proving a right to access an account onto a decedent’s estate. In short, they wanted to avoid any chance of liability tied to an improper disclosure of a user’s digital assets. So they drafted an alternative bill, one that would limit the scope of fiduciaries to access digital assets, while also lobbying against UFADAA.
States got the message. They stopped trying to pass it. That’s why the Uniform Law Commission came up with RUFADAA instead.
RUFADAA is a lot like the 2021 Buffalo Bills: really close to being a big win, but, in practice, still a loss for users. The act creates a hierarchy of ways for fiduciaries to access the digital assets of deceased users. First, if a user has used an “online tool” (more on this in a second), then Big Tech companies and other providers will grant whatever access the user specified in that tool. Second, if a user didn’t use a provider’s tool but did execute a will, then that will can override any limits to access that the provider has outlined in their Terms of Service (TOS). Third, if the user failed to make use of the tool or to execute a will, then those TOS govern the kind of access a fiduciary may be granted.
Universal use of online tools could, therefore, solve this entire problem. If every provider offered an online tool to designate how you’d like your digital assets to be distributed upon your death, then no access issues would arise. There are a couple barriers to this ideal outcome, however. Few providers actually have such online tools and, in the event they do, they don’t make users aware of these tools. Take, for example, Google’s Inactive Account Manager. Ever heard of it?
It’s an online tool that allows you to go product by product through your Google account and designate which assets you’d like to distribute upon your death. It’s easy to use. It’s comprehensive. And it’s something most folks have never heard of. Companies aren’t advertising these online tools. If they really cared about making sure users had their wishes granted, then use of the online tool would be a requirement to create an account.
So there is problem one with RUFADAA: It’s simple solution to bequeathing digital assets is underused by providers and unfamiliar to users.
The next issue is that even if a user goes through all the steps of an online tool, providers can force fiduciaries to jump through time-intensive and expensive legal hoops. Leaning on 30-plus-year-old federal laws, providers have commonly made fiduciaries trying to access digital assets get court orders to actually realize that access. You can imagine that this isn’t exactly an easy step for the vast majority of estates to take.
One final issue: RUFADAA was poorly written, so even if a fiduciary is granted “access” to a user’s digital assets, it’s not clear what “access” actually includes. This ambiguity unsurprisingly gives providers yet another excuse to go to the legal system and throw up walls around a decedent’s digital assets.
Facebook will have 4.9 billion deceased users from around the world by 2100. That means hundreds of millions of American families will have tried to get precious photos and the like from their loved ones. Under RUFADAA, Big Tech companies will exercise undue control over the digital assets of these users.
Simple changes can improve RUFADAA: (1) requiring providers to make use of an online tool a step in registering for the service; (2) limiting the use of court orders where user consent to access is clearly identifiable; and, (3) actually defining what “access” means.
Big Tech’s dominance can be partially explained by horrible default settings. Users opt-in to receiving countless notifications, sharing endless data, and allowing providers to hold onto their most precious digital assets upon death. You could argue that users should be smarter and simply opt-out of egregious behavior. But such an argument is never going to win in a world where attention is at a premium. Let’s reform RUFADAA—state by state—and score a small, but meaningful win against Big Tech controlling every part of our lives (and afterlives).
Kevin Frazier is the editor of the Oregon Way, a nonpartisan online publication. Currently, he is pursuing a J.D. at the UC Berkeley School of Law and an MPP at the Harvard Kennedy School.