Last month, a court in Germany ruled that Facebook should not be compelled to give access to the account of a teenager who died to her parents. The girl died after being struck by a train. Her parents, trying to determine if it was a suicide, wanted to look for evidence that she had been bullied. The initial court ruled in favor of the girls parents, but Facebook prevailed on appeal.

This is an excellent example of the “hard cases make bad law” adage, though I think the court arrived at the right decision here. The girl’s parents argued that it was the digital equivalent of a diary, which is an interitable item. I understand their argument. As a parent myself, I don’t doubt that I would make the same argument were I in their case. But I think the appeals court made the right decision here, although it took some thought to get to that.

It’s more than just a diary

The “it’s the same as a diary” argument makes sense only if you intentionally exclude the ways it’s not. Yes, people use Facebook to share personal musings and reflections the same way they might in a diary or journal. However, Facebook (and other social media) have an interactivity that a diary does not.

This goes beyond the fact that others may leave comments on posts. The owner of an account is not necessarily the originator of the content within the account. What I mean by that is that the messages may be initiated by someone else. Granting account access to the girl’s parents is not really about protecting her privacy, it’s about protecting the privacy of those she has communicated with.

But that’s the point, right?

The girl’s parents wanted to find evidence of bullying. Why should the privacy of the bullies be protected (in the very narrow context of their messages to the girl)? Because they’re probably not the only people who sent the girl messages. What if another friend had confided in the girl about personal matters? What right do the girl’s parents have to that communication? None, of course.

I have a hard time justifying why the girl’s account should be made available to anyone given the risk of harm to innocent third parties. If the situation were different – if the police or prosecutor were ask for specific searches as part of a case – that would be more reasonable, in my opinion. In that case, the structure and process of the investigation would minimize the harm of disclosure.

This is a hard problem

In the pre-digital age, it was less complicated. Conversations that didn’t happen face-to-face (or on the telephone) probably happened via letter. Any letters that were not destroyed became part of the estate. Some heirs probably destroyed them, others not. And though there are many threats to privacy these days, the electronic age has made possible a form of privacy that was hitherto unknown.

I’m certainly in favor of people being able to explicitly opt in to allowing someone to inherit their accounts. And not all accounts are created equal. When I die, I’d like to think someone would keep my meager website around in order to provide a legacy of sorts. But I’d also like to think that my death won’t result in the correspondence my friends have sent me in confidence. It’s not my privacy I want to protect after I die, it’s the privacy of my friends.