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By Jacob Gershman
As policy makers wrestle with how to handle the digital remains people leave behind on sites like Google and Facebook after they die, a new state law expanding access to the deceased's accounts could set a national trend.
Delaware Gov. Jack Markell this month signed a bill that gives estate attorneys and other fiduciaries more control of their deceased clients' digital data, including email, social media and cloud storage data.
The law, which takes a novel approach, deals with the sensitive issue of what to do when people are outlived by their email and social-media accounts, sometimes to the dismay of loved ones who lack access. It extends that access to executors authorized to carry out the instructions of a person's will. The executor can then transfer email and other data to a family member, but isn't required to.
The statute could conflict with a 1986 federal law forbidding consumer electronic-communications companies from disclosing digital content without its owner's consent or a government order, said Jim Halpert, a DLA Piper partner and general counsel of the State Privacy and Security Coalition, which includes Google and Facebook.
About 10 states have considered versions of the Delaware legislation, said Mr. Halpert, whose coalition opposed the bill.
The executor of an estate already has access to letters that belonged to the deceased. The bill, though, removes hurdles an estate attorney or other fiduciary may encounter when they want to search through emails and deal with old debts or accounts that need to be closed.
Mr. Halpert said an email archive might contain sensitive information the deceased might not have wanted disclosed.
Facebook declined to comment on Wednesday. A spokesperson for Google didn't have an immediate comment. Google already lets users decide if they want their accounts transferred or deleted if they become inactive for an extended period.
Earlier this summer, the Uniform Law Commission, a group appointed by state governments to draft and lobby for new state laws, approved a "Uniform Fiduciary Access to Digital Assets Act," upon which the Delaware law is modeled.
"As we conduct more of our professional and personal business online, we must also change our laws to match the reality of how people live in the 21st Century," Mr. Markell said. "This legislation will help our laws keep pace with changing technology and forms of communication."
Write to Jacob Gershman at jacob.gershman@wsj.com
Subscribe to WSJ: http://online.wsj.com?mod=djnwires
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