Data after death: an examination into heirs' access to a decedent's private online account.

• Author: Gaied, Melissa

"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect .... They conferred, as against the government, the right to be let alone--the most comprehensive of rights and the right most valued by civilized men." (1)

1. INTRODUCTION

   In the Internet age, protecting the privacy interests of individuals who predecease their digital accounts has resulted in ongoing legal uncertainty. (2) Much of the ambiguity stems from inconsistent regulation of digital privacy by federal and state governments, as well as private entities. (3) On one hand, federal law prohibits Internet service providers from disclosing content without owner consent or government order. (4) On the other hand, state judges grant court orders to grieving families, demanding that service providers, such as Facebook and Yahoo!, allow access to the decedent's account. (5) Providers then argue that such disclosure orders constitute a breach of contract because of preexisting privacy terms between the user and the provider. (6)

   Further complicating the matter, some states have adopted legislation allowing a decedent's digital content to pass to his or her heir upon death--similar to the treatment of personal property. (7) Delaware recently enacted the most sweeping legislation, granting family members, executors, and heirs total control over the decedent's digital accounts--including email, social media, and cloud storage--the same way it grants rights over physical documents. (8) Despite such legislation, web-providers continue to remain reluctant to disclose user content to grieving families. (9)

   In light of conflicting regulations, the right to privacy may, in fact, evolve as a posthumous right, similar to the evolution of the right to publicity and copyright. (10) Although the event of death deprives a person of his or her privacy right, such deprivation becomes exceedingly difficult to defend in the context of personal online data because such data is immortal by nature. (11) The Supreme Court acknowledged that digital content triggers greater privacy concerns due to the qualitative and quantitative nature of digital data. (12) Nonetheless, American law, in comparison to other developed countries, does not traditionally value the dignity of the dead. (13)

   To understand the state of the controversy, this Note will begin with a historical discussion of the constitutional right to privacy and its evolution as it relates to digital privacy. (14) Further, this Note will discuss how federal, state, and private actors regulate digital privacy and this Note will posit that a discrepancy exists among such regulations. (15) This Note will then discuss how diverging regulations might trigger a debate in favor of a posthumous right to privacy, especially due to the lack of uniform regulation by federal, state, and private actors. (16) The Analysis section will examine the evolution of copyright and the right of publicity into posthumous rights and the strategic use of such doctrines to preserve privacy after death. (17) Finally, this Note will conclude with considerations of the future of a posthumous privacy right. (18)

2. HISTORY

   1. The Right to Privacy and Its Dimensions

      1. Origins of the Constitutional Right to Privacy

         In Griswold v. Connecticut, (19) the United States Supreme Court first recognized the right of marital privacy as a constitutional right protected from governmental infringement. (20) The Court reached its holding by reasoning that the right of privacy in marriage is a fundamental right that the Constitution guarantees. (21) The Court subsequently expanded privacy rights to unmarried individuals in Eisenstadt v. Baird, (22) stating that the right to privacy adheres not in the marital couple but rather in the individual. (23) Further, in Carey v. Population Services International, (24) the Supreme Court expanded privacy rights to protect minors as well. (25) Through many precedential decisions, the Court recognized a constitutional guarantee of certain "zones of privacy," which encompasses personal decisions related to marriage, procreation, contraception, family relationships, child rearing, and education. (26)

      2. Reasonable Expectation of Privacy Under the Fourth Amendment

         1. Katz Expectation-of-Privacy Test

            In Katz v. United States, (27) the Court analyzed privacy in a search and seizure context under the Fourth Amendment. (28) The Court ultimately held that when an individual enters a public telephone booth and makes a phone call, the government cannot record what that individual says without a warrant. (29) Justice Harlan concurred that the Court's reasoning emerged from precedent, invoking a "twofold requirement"--first, that the individual actually exhibits an expectation of privacy, and second, that the expectation is one society would consider reasonable. (30) Additionally, Justice Harlan agreed with the majority that the Katz holding would undoubtedly overrule Goldman v. United States, (31) where the Court held electronic surveillance without physically penetrating a target's premises did not violate the Fourth Amendment. (32) Justice Harlan further characterized the Goldman holding as "in the present day, bad physics as well as bad law" because electronic invasion, like physical invasion, could defeat reasonable expectations of privacy. (33)

         2. Expectation-of-Privacy Test and Equilibrium-Adjustment Theory in Response to New Technologies Post Katz

            In United States v. Jones, (34) the Court recognized the potential difficulties of applying the Katz expectation-of-privacy test, particularly in a society of ever-changing technology. (35) The Court stated it is difficult to apply the Katz test when an individual's privacy expectations might consistently and reasonably change in response to new technology. (36) New expectations would either cause the forfeiture of privacy or create concern over new intrusions of privacy. (37) The Court nonetheless analyzed the government's installation and use of a GPS tracking device on a person's vehicle under the Katz test, and it subsequently held such surveillance constituted a search and seizure requiring a warrant. (38)

            More recently, in Riley v. California, (39) the Court held that law enforcement agencies could not, without a warrant, search digital information on an arrestee's cell phone; otherwise, such search would violate the individual's privacy rights. (40) The Court essentially applied Fourth Amendment protection in an era of new technology while noting that the onslaught of people carrying digital data substantially increases privacy concerns. (41) In reaching its decision, the Court considered the unique qualitative and quantitative nature of digital devices, categorizing cell phones as "minicomputers" with "immense storage capacities]." (42) The Court acknowledged that unreasonable search and seizure of devices with such digitization capabilities had many privacy consequences. (43) Ultimately, the Riley Court applied an equilibrium-adjustment theory after recognizing that the government could attain evidence more readily because of new technology. (44) As a "correction mechanism," judges utilize the equilibrium method to embrace greater Fourth Amendment protections in the face of changing technology, while also maintaining the original degree of privacy protection that the Amendment guarantees. (45)

      3. Survivor Privacy

         Although the Constitution guarantees and protects an individual's right to privacy, it deprives the individual of that right upon his or her death. (46) The privacy rights of the surviving family members of the deceased, however, are preserved despite their loved one's death. (47) In National Archives and Records Administration v. Favish, (48) a media skeptic filed a Freedom of Information Act (FOIA) action, seeking to compel production of death-scene photographs of President Clinton's deputy counsel, who died of apparent suicide. (49) The FOIA, however, excuses disclosure of any information gathered for law enforcement purposes if one could reasonably expect its production would be an unwarranted invasion of personal privacy. (50) In interpreting the FOIA exemption, the Court concluded Congress intended the phrase "personal privacy" to allow family members of the deceased to assert their privacy rights against public intrusions. (51) Ultimately, the Court did not require disclosure of the photographs, concluding that the privacy interests of the deceased's family members outweighed the public's interest in disclosure. (52) Additionally, the Court suggested the case would require an entirely different analysis if the family argued for the deceased's privacy interests instead of their own. (53)

   2. The Digital Era and Privacy

      1. Federal Versus State Regulation of Digital Data

         1. SCA and ECPA

            In 1986, Congress enacted the SCA as part of the ECPA. (54) The SCA is a federal law governing the use and distribution of stored wired and electronic communications and transactions possessed by Internet service providers. (55) In general, the SCA prohibits unauthorized access in order to safeguard a user's privacy interests. (56) Moreover, the law forbids consumer electronic-communications companies from disclosing user content without an explicit exception, such as owner consent or government order. (57) Despite its importance, the SCA nonetheless remains misunderstood, as courts, legislators, and scholars struggle with its meaning. (58) Furthermore, in the case of a deceased account holder, the SCA, or any other existing federal law, neither explicitly permits nor denies a fiduciary access to the deceased's electronic and stored communications. (59)

            In the absence of federal regulation, state courts began issuing court orders demanding disclosure. (60) For instance, in 2005, a Michigan judge ordered Yahoo! to grant the family of a U.S...