Does a person’s right to privacy extend past death?
In this digital age, yes, according to legislation passed by the 2015 General Assembly — the first of its kind in the country.
The Privacy Expectation Afterlife and Choices Act aims to assure that a person’s electronic footprint remains off limits after death — even to his or her close kin — except under very strictly controlled circumstances.
The legislation traveled a long way over the course of the six-week session.
In its original form, as proposed by Del. Jay Leftwich, a Chesapeake Republican, it would have granted the executor of an estate virtually blanket access to the deceased person’s email and other electronic accounts.
Leftwich, an attorney whose firm does extensive estate work, said he was moved to action after hearing about executors who had been frustrated in trying to settle estates by lack of access to online banking, investment and billpaying records.
Because of the increasingly pervasive nature of electronic communications, he said, “I recognized that it was something that needed to be addressed sooner rather than later.”
But his legislation, which had the support of estate attorneys, was pounced on by lobbyists for online service providers, who warned that it would run afoul of their privacy policies, not to mention federal law governing electronic privacy.
“The industry said, ‘That’s not fair to us. You’re passing an act that’s going to set us up for a federal lawsuit,'” Leftwich said. “I think some of their concerns were legitimate.”
The online lobbyists cast their lot with a rival measure offered by Sen. Mark Obenshain, a Rockingham County Republican. His bill began with the premise that people rightly expect their electronic communications to remain private after they die.
“If somebody has something that they don’t want to share with their family and goes to pains to keep it private and confidential,” Obenshain said, “the expectation of most people would be that that would not be something the executor could get as a matter of course.
“It used to be that if you had a paramour, you could burn the letters before you die. You can’t do that with an online account.”
Obenshain cited a recent poll commissioned by NetChoice, an online trade association, in which more than 70 percent of respondents said their online communications should remain private after they die unless they gave prior consent for others to access them.
Leftwich and Obenshain huddled with lobbyists to hammer out a compromise, which passed unanimously on Feb. 27, the last day of the session.
“We went through probably 20 different drafts,” Obenshain said.
The final version, now awaiting Gov. Terry McAuliffe’s signature, gives an executor access to the so-called “envelope” information about the deceased person’s online accounts for the 18 months before his or her death. That includes the time and date of the communications and the electronic addresses of the other parties to the correspondence.
That allows the executor to determine, for instance, whether the deceased person received regular emails from a credit card company, bank or investment brokerage and then to contact those institutions to settle the accounts.
But the executor would not be able to access the contents of the correspondence unless the deceased person consented to the disclosure in advance, either through a will or an agreement with the Internet service provider.
Leftwich and Obenshain said they’re both happy with the outcome.
“It adds structure to the process,” Leftwich said. “Now the providers and the industry and the estate planners all know what to expect.”
Jeffrey Novak, vice president for state public policy at AOL Inc., said similar legislation is bubbling up in statehouses around the country, but the Virginia measure is the first of its kind to be enacted.
He expects other states to follow suit as lawmakers get a handle on the concept of afterlife privacy.
“I don’t ever think about my children inheriting my voice mails and my text messages,” he said. “They’re not drafted with posterity in mind.”