Class 7 Internet Privacy Law Your Digital Afterlife

Your Digital After- Life What happens to your digital accounts and assets when you die?

One Idea with 2 Problems Privacy Expectations Federal Law

A person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service; Exception A provider … may divulge the contents of a communication: to an addressee or intended recipient of such communication or an agent with the lawful consent of the originator or an addressee or intended recipient Penalty [Any] person aggrieved by any violation of this chapter … may, in a civil action, recover from the person or entity … which engaged in that violation such relief as may be appropriate. Damages Relief.— In a civil action under this section, appropriate relief includes— [statutory damages] Federal Law at Issue

18 USC § 2702(a) ❖ (a) Prohibitions.— Except as provided in subsection (b) or (c)— ❖ (1) a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service; and ❖ (2) a person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service— ❖ (A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such service; ❖ (B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing; and ❖ (3) a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by paragraph (1) or (2)) to any governmental entity.

18 USC § 2702(b) ❖ (b) Exceptions for disclosure of communications.— A provider described in subsection (a) may divulge the contents of a communication— ❖ (1) to an addressee or intended recipient of such communication or an agent of such addressee or intended recipient; ❖ (2) as otherwise authorized in section 2517, 2511 (2)(a), or 2703 of this title; ❖ (3) with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of remote computing service; ❖ (4) to a person employed or authorized or whose facilities are used to forward such communication to its destination; ❖ (5) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service; ❖ (6) to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 2258A; ❖ (7) to a law enforcement agency—…

18 USC § 2707 ❖ (a) Cause of Action.— Except as provided in section 2703 (e), any provider of electronic communication service, subscriber, or other person aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate. ❖ (b) Relief.— In a civil action under this section, appropriate relief includes— ❖ (1) such preliminary and other equitable or declaratory relief as may be appropriate; ❖ (2) damages under subsection (c); and ❖ (3) a reasonable attorney’s fee and other litigation costs reasonably incurred.

18 USC § 2707 ❖ (e) Defense.— A good faith reliance on— ❖ (1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization (including a request of a governmental entity under section 2703 (f) of this title); ❖ (2) a request of an investigative or law enforcement officer under section 2518 (7) of this title; or ❖ (3) a good faith determination that section 2511 (3) of this title permitted the conduct complained of; ❖ is a complete defense to any civil or criminal action brought under this chapter or any other law.

Privacy Expectations ❖ Electronic communications are substantially different from a letter or other physical communication ❖ Treatment ❖ Volume ❖ Retention

Trust & Estate Attorneys want greater control over their clients’ and digital assets ❖ A personal representative may take control of, conduct, continue, or terminate an account of the decedent...

Impact of the ULC Model Personal reps get easy access to online accounts Does not address conflicts with federal law Sets default privacy to zero – ignoring privacy terms of service Explicit privacy choices made prior to enactment are obliterated

Privacy Expectation Afterlife and Choices Act (PEAC) ❖ Accessing Records of Electronic Communications ❖ The probate court can order copies of the records of the communications for the fiduciary. These records (like the To and From lines of an ) help fiduciaries identify important interactions, like those with a bank or online broker, and then contact those institutions as part of closing the account. ❖ Accessing the Contents of Electronic Communications ❖ Fiduciaries can see the contents of communications only when the deceased expressly allowed it in their will or through user choice controls. If the deceased bequeathed these communications, service providers will comply subject to verification and indemnification processes. ❖ Respecting User Choices ❖ The deceased user chooses if and how their contents are accessed via user level controls and the terms of service they agreed to in life.

Poll of 1,000 Registered Voters across America ❖ By nearly 5-to-1, Americans support the approach of the PEAC Act. Over 70% of Americans say their private online communications and photos should remain private after they die, unless they gave prior consent for others to access. Only 15% say that estate attorneys should control their private communications and photos, even if they gave no prior consent for sharing. ❖ The PEAC Act gives users the privacy defaults they want. Just 15% said an estate attorney should make the decision about sharing their private communications and photos. 43% say these items should be deleted upon proof of death. 30% say their estate could access these items only if they gave prior consent. These results align with the PEAC Act’s approach for giving users power over their own accounts.

Alternatives on the Scene

Google’s Inactivity Manager

What about my iTunes? How to address digital goods not assets.

License Agreements ❖ First Sale Doctrine ❖ One doesn’t have the same rights as with print books and CDs. Customers own a license to use the digital files — but they don’t actually own them. ❖ Amazon: ❖ “You do not acquire any ownership rights in the software or music content.” ❖ Apple limits the use of digital files to Apple devices used by the account holder.

That’s not fair… or is it? ❖ Low cost of music and movies and books. ❖ Contracts are contracts whether we read them or not.