A new Oklahoma law is designed to help estate executors or administrators gain control over social networking profiles of people who died and left them behind. Experts say the law itself may prove toothless, but it should remind people to think about what happens to their online legacies after they die.
Former state Rep. Ryan Kiesel, D-Seminole, co-authored House Bill 2800 before he left office. The law, which took effect Nov. 1, has its genesis in an National Public Radio piece Kiesel heard about what happens to Facebook pages when people die, and the problems families have had gaining control.
The law assumes a Facebook page or other social network account is the property of the person who creates and uses it. That may not be the case, because most websites claim the information as their own in agreements when users sign up.
â€œThe property rights are generally defined by those user terms and conditions â€” which people never read, by the way,â€ said Mike Lackey, a Washington, D.C., attorney for the international law firm Mayer Brown with experience in social network law and policies. Lackey said he thinks the law is the first of its kind in the U.S.
Mark R. Gillett, associate dean of academics at the University of Oklahoma Law School, agreed the law won't override the terms of service agreements and doesn't create any property or contract rights that don't exist.
â€œThat being said, it may help executors and their attorneys to focus on the relevant issues and to assume control of the decedent's interest where permitted by contract law,â€ Gillett said in an e-mail.
Kiesel acknowledged the law may conflict with service agreements, but said the law was intended to get people thinking about the permanence of what appears on Facebook and other websites.
â€œWe're not just leaving a couple of shoeboxes full of mementos behind,â€ Kiesel said. â€œWe're leaving behind potentially thousands of photographs and all kinds of aspects of our lives online.â€
Lackey's colleague at Mayer Brown, Los Angeles-based attorney John Nadolenco, said the law and any like it could ultimately face a challenge in a courtroom, and then again in appeals courts. And deep-pocketed social networking companies could have a stake in the fight, especially because social networking information or data could be monetized, particularly in the case of deceased celebrities.
â€œCertainly the information has value,â€ Nadolenco said. â€œThe advertising market proves it. The site might think ... it's not for the user to transfer it to their estate, to some beneficiary, (or) to the executor to use thereafter.â€