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Law professor argues that the data could later be used in exploitative fashion, such as to create holograms of stars

"Virtually no law regulates what happens to a person's online existence after his or her death," warns University of Illinois College of Law Professor Jason Mazzone.

I. Facebook: Bring Out Your Dead (Well, Their Data, at Least)

"This is true even though individuals have privacy and copyright interests in materials they post to social networking sites.  The current situation is that there’s very little law involved.  Social networking sites determine on their own what, if anything, to do with a deceased user's account and the materials the user posted to the site. And their policies are not likely to reflect the collective interests that exist with respect to copyright law. It’s a little bit like letting the bank decide what to do with your money after you die."

So what is all this noise?

Well Professor Mazzone is referring to the fact that web giants like Facebook often archive your data post-mortem.  Facebook opts for a tasteful solution publicly, closing the user's page and offering a memorial wall for friends to post memories.

Facebook memorial
Facebook seemingly offers a tasteful memorial, but it secretly saves the hidden digital "remains" of the dead, possibly for future profits.

But as the professor points out, behind the scenes Facebook is believed to be squirreling away the person's pictures, posts, and other content -- all things that could be of value if the site decided to act exploitively in the future.  And people might not even realize Facebook had breached the privacy of the deceased, as it could in theory discretely sell the information to third parties.

Jason Mazzone
Prof. Jason Mazzone, Univ. of Illinois Law School [Image Source: U of I College of Law]

He warns, "I suspect that Facebook thinks that there's going to be some future value to having all of that content locked away, either because it will have historical significance, or because Facebook thinks there will be something they are going to do with that content down the road. There are already pretty crude avatars being built based on their email exchanges and Facebook posts, so it’s conceivable that there could be things like holograms that are developed 100 years from now thanks to the mining of all of this data. But Facebook doesn’t know that for sure, and that’s why they see the value in holding on to all of this."

II. HIPAA Equivalent Needed for Digital Remains?

Professor Mazzone sees that as a major legal and privacy issue affecting social networking and blogging sites.  And he feels that only the federal government has the power to enforce clear guidelines regarding dead peoples' "digital afterlife" on sites that span and do busines across multiple U.S. states.

"[I]t would be very difficult for any particular state to set up a legal regime that would adequately regulate Facebook, which not only operates all across the U.S. but also all over the world. Some states have enacted legislation in an effort to protect their own citizens, but it’s not at all clear how it would affect Facebook as a whole", he comments, "In order for this type of law to be effective, we have to turn to the federal government."

Medical records
Prof. Mazzone wants a HIPPA-like law to protect peoples' post-mortem digital data.
[Image Source: Pennock Health]

He points to Health Insurance Portability and Accountability Act of 1996 (Pub.L. 104-191, 110 Stat. 1936) -- commonly referred to as "HIPAA law(s)" -- as a comparable mandate.  HIPAA laws make it illegal for doctors from sharing patient information without explicit permission and impose restrictions on medical record-keeping to protect privacy.

Prof. Mazzone, who has written books on the topic, has published a legal research article/editorial called "Facebook’s Afterlife" in the North Carolina Law Review sharing his thoughts on the matter.

Sources: University of Illinois [press release], SSRN [abstract]



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Nothing to see here
By aurareturn on 9/27/2012 8:17:36 PM , Rating: 0
Holograms? 100 years from now? Get real. This professor just wants attention so he chooses Facebook. Same can be said of Twitter, Google Plus, Gmail, etc. It's just popular to attack Facebook because that's the trend.

The fact is, there is no law governing this so Facebook can do what it wants. If there's a law, then Facebook will surely comply. Facebook is hated by many but the people working there are not some kind of heartless, soul-less, demons.

This is all speculation. Factless. Nothing to see here.




RE: Nothing to see here
By simsony on 9/27/2012 8:52:42 PM , Rating: 2
I think you missed the point of the article. If anything, it means a law may be needed here. And that it needs to cover twitter, Google Plus, Gmail, etc.


RE: Nothing to see here
By Strunf on 9/28/2012 7:27:26 AM , Rating: 2
The point of the article was to spread FUD, maybe there isn't a law about the data can be kept or not, but there are laws about the use of it, what makes you think that Facebook could make a hologram of you and not your friends? I'm pretty sure there are already laws about the use of the image of someone dead and this law would also cover facebook.


RE: Nothing to see here
By Reclaimer77 on 9/28/2012 12:40:52 PM , Rating: 2
quote:
If anything, it means a law may be needed here.


That's all we need. Soulless scumbag lawyers lobbying for more laws. I guess he ran out of ways to sue someone so he needs more laws.


RE: Nothing to see here
By StuckMojo on 9/27/2012 9:16:47 PM , Rating: 3
Actualy you're off base. My good friend from college just died and his Facebook page just continued on. When you hit it you'd have no idea he was dead. He was a computer professional so I'm sure his wife didn't know his password, and therefore couldn't do anything about it. There ought to be some mechanism for it to transfer to your next of kin.


RE: Nothing to see here
By Samus on 9/27/2012 11:18:44 PM , Rating: 2
Exactly.


RE: Nothing to see here
By Strunf on 9/28/2012 7:18:05 AM , Rating: 2
The simple FACT that Facebook already has memorials means there is a way to do something about it.


RE: Nothing to see here
By Ringold on 9/28/2012 10:51:58 AM , Rating: 2
That's true, but I see this as a wider one and not at all Facebook-specific. Facebook has done more then some other firms, like you point out.

I think there just needs to be a simple, broadly-written law to bring the digital era in line with what exists in other areas, so next of kin have a very easy time wrapping things up. Just a matter of modernization w.r.t. laws and ideas long accepted. How that can be done without compromising security is beyond my pay grade, though.


RE: Nothing to see here
By Stuka on 9/28/2012 11:41:00 AM , Rating: 3
A one word Help search reveals this as the very first result...
quote:
Memorializing the account:
It is our policy to memorialize all deceased users' accounts on the site. When an account is memorialized, only confirmed friends can see the timeline or locate it in Search. The timeline will also no longer appear in the Suggestions section of the Home page. Friends and family can leave posts in remembrance. In order to protect the privacy of the deceased user, we cannot provide login information for the account to anyone. However, once an account has been memorialized, it is completely secure and cannot be accessed or altered by anyone. If you need to report a timeline to be memorialized, please click here.

Removing the account:
Verified immediate family members may request the removal of a loved one’s account from the site.


If anything were to change, the change should be to allow the executor of the estate full control of the deceased's profile, whether family or not. There are already mechanisms for this with bank accounts, properties, etc., just copy those mechanisms.


RE: Nothing to see here
By dark matter on 9/28/2012 3:15:03 AM , Rating: 3
Why do you think it acceptable that a company "can do what it wants".

Are you what, 10 years old or something?


RE: Nothing to see here
By mcnabney on 9/28/2012 9:18:30 AM , Rating: 3
The user agreed in the EULA to allow FB (or anything like it) certain rights to the content contained within. The rights of the service provider don't end with the consumer's (the product, actually) death. Facebook has the same rights in relation to posted material after death as it had when the consumer was alive.


RE: Nothing to see here
By 91TTZ on 9/28/2012 10:40:14 AM , Rating: 2
The problem with EULAs is that you're really giving up a lot legally by signing them. But if you don't sign that EULA, then you can't use their product. When that product becomes a "standard" then it's as if you don't have a choice but to sign those rights away. When the choice isn't whether to sign those rights away but to whom you want to sign them away to, you're not left with much of a choice.

For instance, imagine if one car company made you sign a EULA before buying their car that stated some pretty restrictive things like:
You cannot work on your own car- you must take it to the dealer and pay an inflated amount for repairs
You can only buy gas from their partners (whose gas is more expensive than normal)
You must pay a monthly fee on top of the normal cost of the car (removing the incentive to pay your car off and outright own the car)

In this case, it would probably be a no-brainer for people to avoid this car company. But imagine that with those legal snags, they're able to sell cars for less money than their competitors, and as a result all the other car manufacturers adopt similar EULAs in order to compete with them. Now you're in a situation where a "rare, abnormally restrictive" EULA is now an industry norm, and you either have to agree to it or not drive any vehicle.


RE: Nothing to see here
By 91TTZ on 9/28/2012 10:26:52 AM , Rating: 1
There's a moral side as well as a legal side to this debate. You're saying that since there's no law against it, Facebook can do what it wants. You make it sound like there's nothing wrong with that.

But the fact is that people and companies often do questionable things that skirt legality. In some states, someone can pretty much steal your house if they see that there's a lien against it. They buy the lien and if you don't pay back some inflated amount, they can "legally" take your house. It's gaining attention now in the media but as of yet it's not illegal. Would you say it's ok to do this since it's not illegal?

Or, if I'm wealthy and can afford to pay the legal fees, I can pretty much sue you into oblivion. It doesn't really matter if you haven't done anything to me, if I sue you you'll need to defend yourself in court which will cost you legal fees (if you decide to hire a lawyer) or at the very least you'll have to take off work to defend yourself. If I have deep pockets I can keep this game going for a pretty long time.

My point is that there are ways people can screw you and still not be breaking a law.


RE: Nothing to see here
By NellyFromMA on 9/28/2012 1:53:16 PM , Rating: 2
Exactly, it's bad enough that somehow they (more Google, than FB, but as well) get away with owning all of your information in an age where you really can not NOT use these services and consumers end up forfeiting virtually all rights to... themselves. Now, they can exploit you for the remaining 2% of rights you retained over... yourself... when your dead.

It's BS. Consumer's better get smart and band together otherwise 10-20 years the beauty of technology isn't going to be all the beautiful for the common person.


"So, I think the same thing of the music industry. They can't say that they're losing money, you know what I'm saying. They just probably don't have the same surplus that they had." -- Wu-Tang Clan founder RZA











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