The law is murky when grieving relatives seek access to social media.
In October 2010, Jay and Helen Stassen lost their 21-year-old son, Benjamin, to suicide.
Now, in a quest for answers, they find themselves locked in a battle with Facebook that has taken them into the murky legal waters of digital access -- and whether grieving families should have control over the private social media and online accounts of loved ones who die.
The Prescott, Wis., couple didn't quite know where to turn after Benjamin's death. He left no letters or diaries -- like many young adults, Stassen didn't put his thoughts on paper. So the attorney and librarian turned to Facebook and other online sites their son used.
When they discovered they didn't have full access to the sites -- and that companies were reluctant to provide access -- the Stassens took the matter to Pierce County District Court.
"The circumstances of Ben's death were totally unexpected," Jay Stassen said on Friday evening. "This is part of the process for us of trying to come to some kind of understanding and maybe some kind of peace of mind."
Google complied with a September 2011 court order to release information from Stassen's account to his parents. Facebook, however, has not complied with a similar order issued on April 25.
The case reflects a growing quandary in U.S. law over who has rights to digital property. Federal law offers no clear guidance on digital access rights, and only five states have tried to address the issue.
In the absence of explicit permission granting access, online companies have moved conservatively, not wanting to risk lawsuits because they gave information to people to whom the author had denied access.
"They don't know what the law is either, so they get scared," said Gene Hennig, an attorney with Gray Plant Mooty in Minneapolis. "They're afraid they're going to get sued [for] invading privacy."
Lives behind passwords
Social media sites have incomplete policies, said James Lamm, an attorney at Hennig's firm who is an authority on the issue. When someone dies, Facebook will comply with a relative's request to either take down the decedent's page or to turn it into a memorial page. But the policy doesn't clarify access rights for grieving families or executors of wills.
"A lot of families haven't felt the pain of this yet," Lamm said. "Traditionally, what we would do is go into a person's house, we'd gather their paper records, we'd watch the incoming mail. And that's how we'd gather all of the information we'd need to make decisions about an estate. ... Now, more of our lives are locked behind these passwords and locked behind encryption."
Google and Microsoft have policies clarifying conditions on which they'll provide copies of digital information. Lamm said the companies make a distinction between whether families can view someone's social media information and whether they get full access to social media pages and alter them.
Hennig is a commissioner for the national Uniform Law Commission, which next month will consider whether to draft proposed legislation for all states to follow. States need consistent laws on this issue, Hennig said, because the physical location of online information is so unclear.
"Digital property, where is it?" he said. "It's in the cloud. It's in never-never land."
Stassen was a junior in college with ambitions of being an entrepreneur and had interests in drumming and yoga. His parents weren't Facebook friends with their son, but his brother was. The Stassens used the brother's access to see Ben's public Facebook page. Now they are wondering if there is key information about him in the private messages and other segments of the page that they can't see.
As sole heirs to their son's estate, the parents only want to see the Facebook content. They don't want access to his page.
Facebook declined in an e-mail to the Star Tribune to discuss the case or why it hasn't complied with the order.
Families might be able to log on to their loved ones' pages by guessing the passwords or finding close friends who have access. But accessing a person's private social media page with a password obtained surreptitiously could result in criminal charges. Social media organizations have contracts forbidding people from accessing pages other than their own.
"It's really dicey," said Christina Kunz, a professor and cyber-law expert at the William Mitchell College of Law in St. Paul. "You can use various things to try to crack a password, but it doesn't solve the problem here."
Other online arenas where the dilemma can surface include password-protected photo websites that might contain a family's entire collection of photos and videos. Online games, too, could pose a challenge: Some gamers amass reward points in games such as "World of Warcraft" that could be viewed as assets by executorsof estates.
Another dilemma: Some people might not want certain relatives to see their social media personas after they die. Teens might exhibit wild behavior online and not want parents to see it. Spouses could hide affairs on private e-mail accounts. As the law evolves, Hennig said, individuals will need to take explicit steps to prevent loved ones from seeing this type of information.
Stassen's parents still have questions. They won't discuss what information they've found on their son's Google account. "Nothing we have found so far has resolved in our minds what might have been happening," Jay Stassen said. "So we continue to look, we continue to search."
Jeremy Olson • 612-673-7744