Death and Facebook. The Legacy Feature.

A friend of mine died and his wife posted his death and funeral arrangements on his Facebook page. In this era of social media, Facebook is a natural and expected forum to notify friends and relatives of such information. Unfortunately, use of his Facebook account was unauthorized by Facebook and constituted criminal behaviour under both Massachusetts and Federal law. At the time of his death, his wife had no other way to use his Facebook account to provide notice. Since that time, Facebook has changed its policies and now has a Legacy feature for memorization of Facebook pages after death.

Facebook's Terms of Service states: “You will not share your password let anyone else access your account, or do anything else that might jeopardize the security of your account.” In other words, the only authorized user of a Facebook page is the registered owner. There is no exception for family members after death. Authorization is important because both Massachusetts and Federal law make it a crime for any person who is not an authorized user to access a computer. Since using Facebook means that a user accesses Facebook's computer, any person who is not authorized by Facebook and uses another person's account is committing a crime. Massachusetts General Laws chapter 266, section120F punishes unauthorized computer access by up to thirty days in jail and a one thousand dollar fine. United States Code Title 18Section 1030 punishes unauthorized computer access by up to twenty years in prison and fines. Permission to use a Facebook account by the registered owner of the account is still a crime because Facebook doesn't allow such permission. A widow posting information about her husband's death is unauthorized and a criminal act.

Facebook has recognized people's desires to use Facebook accounts after death and has created a new feature called Legacy. During a person's life, they can designate a person as a “Legacy Contact.” This person will have limited rights to access a Facebook account after a person dies. The Legacy Contact can post a final message and Memorialize the account. Memorialization freezes the account, indicates that the owner died and may allow others to share memories on the account.

Every individual with a Facebook account should consider a legacy contact. This should become part of estate planning and become just as routine as writing a will or making pre-death funeral arrangements. Unauthorized computer access can have serious criminal consequences. A lawyer can help understand how to avoid violating the law and still enjoy social media.