Federal Laws Part II. – The Stored Communication Act

The Electronic Communications Privacy Act (and its part, the Stored Communication Act) can also be the limit of access to the deceased’s online data for the personal representative. The Stored Communications Act specifically regulates that for the service providers it is forbidden to disclose any data in connection of the electronic communication they provide. The Act’s privacy protections have been a significant obstacle for fiduciaries and family members seeking access to the contents of a deceased individual’s online user accounts. However this prohibition can be broken in defined exceptional situations. Thus, the electronic communication provider is the recipient of such communication (for example, if you did not send that email), if the deceased gave his or her lawful consent for the person requesting access or for the law enforcement offices (if it is likely that the data contains information for a crime).

The full text of the Stored Communications Act available here.

In these exceptional cases, the provider is required to disclose the deceased’s online data. On this issue the law contains a provision that regulates voluntary data disclosure. However, this can only be done by “service providers” that are not provide public electronic communication services. For this a good practical example can be an employer who can consider whether to release for the relatives the dead employee’s professional letters, and the private letters he or she sent or received on the company e-mail.

The Stored Communication Data Act was interpreted in the very new case of Ajemian v. Yahoo by the the Supreme Judicial Court of Massachusetts. The briefs filed in this case by the parties are available here.

The Supreme Court concluded  that the personal representatives may provide lawful consent on the decedent’s behalf to the release of the contents of the email account.

This is a really significant action in the legal aspects of online data after death: the Supreme Court broadened the circle of people who can give lawful consent for the release of online data such as e-mail accounts.

Jim Lamm, the great expert of this topic dedicated a post to this subject on his blog, which you can reach here.

Effects of Netzwerkdurchsetzungsgesetz (German network enforcement law)

Facebook is opening its second center in Essen, Germany.

The center is going to investigate and delete the offending posts from the site. One of the reasons behind Facebook’s decision is a bill recently adopted by the German parliament (Bundestag), with the aim of repelling hateful posts and the fight off against breaking privacy rights by the government.

According to the new German law social media companies such as Facebook could face fines of €50.000.000 for failing to remove hate speech within 24 hours if the situation is easy to clarify. If the situation is difficult and requires detailed investigation, the service providers has one week to do it and the decide about the deletion.

The new bill is effective from 1st October 2017 but the authorities will have the right for fining from 2018. The new regulation is affective for every social media site, so besides Facebook Twitter and Youtube is also in the spectrum of the bill.

Facebook now employs 4500 people worldwide to remove legally objectionable content, but they would like to increase this number to 7500 in the future. From this autumn there will be 500 in Essen while in Berlin the number of staff has just been raised to 700 in the local center.

In the recent weeks we can hear pros and cons about the new law, which can definitely affect the freedom of speech but can also provide defense for sensitive layers of the society. I don’t think the German government would like to start the new year with a €50 million fine but it is obvious that the age we live in, the traditional legal instruments against hate speech are not effective enough.