Prof. Calls Out Facebook, et al. For Hoarding Dead Peoples' Digital Remains
September 27, 2012 6:20 PM
comment(s) - last by
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
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 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.
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."
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 "
" in the North Carolina Law Review sharing his thoughts on the matter.
University of Illinois [press release]
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RE: Nothing to see here
9/28/2012 9:18:30 AM
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
9/28/2012 10:40:14 AM
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.
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