The barriers of Facebook's terms of service agreement: hardships placed on fiduciaries access to digital assets

Abstract

The Stored Communications Act (SCA), as it stands now, creates an issue for fiduciaries accessing digital assets from cloud-based servers of deceased clients. The simple request of a decedent's Facebook information implicates several historical legal issues of privacy, ownership of content, and fiduciary rights, which all seem to muddy the already murky water created by the SCA. While much of this tangled area of the law is due to a failure to evolve the laws regulating an advancing market, some blame can be placed on service providers. Facebook and other service providers should update their terms of service (ToS) to put fiduciaries out of harm's way of criminal penalties, allow Facebook to voluntarily distribute materials to fiduciaries and give notice to account holders. The ToS agreements entered into are at the focus of this issue and are the easiest and fastest way to achieve clarity.