Facebook Wants You Dead: The Fight Over Who Owns Our Digital Afterlives

What do Facebook’s 1 billion users have in common? They’re all going to die.

The question of what happens to our profiles on Facebook (Nasdaq: FB) and other social media sites has become an increasingly contentious one over the last few years, as users willingly hand over more and more personal information and artifacts to Internet companies. Some grieving loved ones have found themselves embroiled in legal battles over access to the files of their deceased relatives, while Facebook and other websites argue that they have an obligation to protect users’ data, even after death.

But legal experts say that Facebook users have even less legal protection than they realize. In a paper published this spring in the North Carolina Law Review, Jason Mazzone, a professor at the University of Illinois College of Law, wrote that the United States has virtually no laws regulating what happens to our social media profiles after we die. Mazzone argues that lawmakers, particularly federal lawmakers, need to step up their efforts to more clearly define the ownership of our digital lives and afterlives.

In legal terms, Facebook user accounts are considered intangible property. That means someone owns them. The problem, Mazzone writes, is that who owns them isn’t clear. The “terms of use” that users agree to when they sign up for social media sites are often verbose and vaguely worded, leaving users with little choice but to consent to policies that few people ever bother to read.

Facebook’s terms do not specifically say that Facebook retains ownership of users’ accounts, but they don’t grant ownership to users either. “Several key provisions make clear that, according to Facebook, accounts are not property owned by individual users,” Mazzone writes. “For one thing, Facebook imposes numerous restrictions on how a Facebook account can be used. Users who violate the ‘letter or spirit’ of Facebook’s terms lose access to the site.”

In other words, if Facebook can cut you off from your account, then your account isn’t really yours. That leaves the relatives of dead users with little legal recourse to obtain account data or even to demand that Facebook completely delete it. “If the individual Facebook user does not own the account, there is no property subject to probate upon the user’s death,” Mazzone added.

Facebook began memorializing the profiles of dead users in 2009, leaving limited information public but essentially freezing the account. Immediate family members can request that the account of a deceased loved one is removed, but Facebook provides no option for users to request that their own profiles are deleted upon their death.

Mazzone believes the law needs to catch up with the way people live their lives now, with legislation spelling out where our personal information ends up. “No one is happy with the way things are,” he told the New York Times Magazine last month, “Except, of course, for Facebook.”

And Mazzone is not alone. Acknowledging that the laws are murky and out of date, the U.S. government has encouraged people to create a “social media will,” essentially a written statement appointing someone you trust as an “online executor” and expressing how you would like your social media profiles to be handled upon your death.

Admittedly, the concept of a social media will is not likely to quell the need for legislation addressing the many legal headaches associated with our digital afterlives, but it’s a good first step. If nothing else, it can offer you piece of mind that your Facebook photos will be in good hands when you check into that big social network in the sky.