States Seek A Way To Pass On Digital Accounts After You Die

Two states have passed digital-asset bills, and more are coming.

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Kacper Pempel / REUTERS

What happens to all your digital possessions—your witty Gmails, your candid Facebook snapshots, your exhaustive iTunes collection of Barry White—when you shuffle off this mortal coil? More than 10 states have considered bills so far this year related to so-called digital assets, and two made it past the governor’s desk. That brings the total to seven states that have laws on the books, addressing an issue that will only become more important as tech-obsessed generations age.

A digital asset is essentially anything with financial or sentimental value that you can’t hold in your hand, from emails to gaming accounts to domain names. And unlike your record collection or your box full of love letters, it’s often unclear how—or whether—you can give others access to them. When TIME did a deep dive into digital legacies last year, the five states that had related laws were Connecticut, Indiana, Idaho, Oklahoma and Rhode Island. In March, now-beleaguered Virginia Gov. Bob McDonnell signed a measure that helps survivors access deceased minors’ online accounts. Nevada Gov. Brian Sandoval approved another bill in June, empowering personal representatives to obtain a deceased person’s emails. But the new laws, like the older ones, deal with only pieces of the digital-assets puzzle.

Virginia’s narrow scope—applying just to minors—reflects the nature of recent controversies about digital assets, which often involve service providers and parents who have lost children. In Virginia, resident Ricky Rash and his wife fought for better access to Facebook after their 15-year-old son committed suicide in 2011; looking for answers, they turned to his account but were initially blocked and later given limited access. “We were just grieving parents reaching out for anything we could,” Rash told the Washington Post in February. Companies like Facebook may look rather heartless in such stories, but they’re in a sticky position, needing to respect federal privacy laws and their own terms of service, a contract that often says an account is non-transferrable.

One fix the companies themselves can implement is letting account holders indicate once-I’m-out-of-touch preferences. In April, Google announced a feature called “Inactive Account Manager.” Users of services like Gmail, Picasa or YouTube can go to their settings and tell Google what to do after their account is inactive for a certain amount of time, like three or six months. Google will terminate the holdings of the account, if requested, or have the data sent to trusted contacts. Previously, getting access to a deceased person’s Gmail account required a death certificate, months of review and a court order—and still likely would if the user doesn’t take advantage of the feature.

Basing the system on inactivity is smart, because it accounts for incapacity as well as death. Karin Prangley, an estate lawyer from Illinois, illustrates why afterlife isn’t the only consideration. In 2009, one of her clients suffered a stroke. He ran a building supply business in Maryland and kept all his records—of what he ordered and who was owed products and what bills needed to be paid—in a Yahoo account. As his family coped with the emotional stress, they tried to get access to his company emails, but Yahoo wouldn’t budge. Custom windows started piling up outside his warehouse, and the business went “into a downward spiral,” Prangley says. When the client came to weeks later, his “secret” questions made no sense to him, and the company, staying true to their privacy policies, wouldn’t tell him the password over the phone. Though he made eventually made some physical recovery, to this day he has not recovered his password (or his business).

Dealing with the broader world of death and incapacity is a prime objective of the Uniform Law Commission (ULC), a nonprofit association that champions federalism by drafting and promoting state laws. Attorneys appointed by state governments have been working under the group’s umbrella on a digital-assets bill for the past year. This month they held their first reading of the act, a hearing where interested parties can comment on what they like or don’t about the bill. As of now, the main thrust is to circumvent the “non-transferrable” problem by stating that giving access to a legal representative doesn’t count as a transfer, when the owner has passed on or can’t manage the asset themselves.

Commissioner Suzy Walsh emphasizes that the process takes time partly because they want input from as many affected parties as possible. During the July meeting, it became clear that “the social media folks are very uncomfortable with” incapacity provisions, she says—like letting a court-appointed caretaker manage an account for a mentally-disabled adult. But she’s grateful to have input from companies like Facebook and Yahoo, tech giants who could lobby the eventual bill out of town. “We don’t want to slap these companies in the face,” Walsh told TIME last year, “and draft something obnoxious.” Groups like the American Civil Liberties Union have weighed in on the process too, citing privacy concerns.

The ULC’s work is part of the reason that more of this year’s state bills didn’t become laws. Commissioners will sometimes advise state lawmakers to stand down and wait until the uniform act is available, partly because their measure is taking on a broader range of people and circumstances than a law like Virginia’s. “If you’re going to be creating a new law that deals with what happens to digital assets when someone can no longer manage them, you might as well be as comprehensive as possible,” says George Washington University law professor Naomi Cahn. The ULC plans to have their final draft finished and ready for state legislatures by next summer. Success, Walsh says, would be 20 or more states passing the measure.

Even then, there will still be plenty of unanswered questions. One thing the bill won’t do, for instance, is deal with what happens to copyright-protected material like an iTunes collection. The iTunes terms of service agreement doesn’t mention the word death, and Apple simply has no policy on whether someone can will or inherit an account. “The pervasiveness of digital assets is such that everybody is starting to think about this,” Cahn says. “The most unique barrier is that this is all so new.”

Check out TIME’s nine tips on protecting your digital assets here.