As more and more Americans use social media to share personal information, privacy issues become critical to the discussion about control over user accounts after their death. Although internet service providers—like Facebook—have policies governing the terms and conditions of a user’s account, these policies usually do not fully protect a deceased person’s right to privacy. There are two primary theories offered as a means for protecting a deceased person’s online privacy. The first is rooted in contract law, while the second is rooted in property law. The contract theory relies on analyzing terms of service agreements that users accept to determine the scope of their posthumous privacy rights, while the property theory evaluates whether a deceased user’s digital assets may be treated similarly to “real property” after death. These measures, however, do not sufficiently protect a deceased person’s right to privacy. This Comment explains why courts should extend tort law to a deceased person’s right of privacy to protect his digital assets and argues that such an extension of tort law is justified because both U.S. statutory law and common law already recognize retention of posthumous rights.
Protecting Privacy after Death,
Nw. J. Tech. & Intell. Prop.