The relative lack of acknowledgment of post-mortem privacy rights has sparked controversy, as rapid technological advancements have resulted in increased amounts of personal information stored and shared online.
In addition, the deceased do not qualify for privacy protections held in constitutional and statutory rights, such as those noted in the Fourth and Fourteenth Amendments.
The widow of Jesse James Jr. filed suit against Screen Gems on behalf of her late husband, claiming the use of his name in a documentary was an invasion of his privacy.
[6] The inconsistencies surrounding this legislation also have the potential to expose very personal medical information that can also affect the living relatives of a patient.
For example, certain genetic diseases that the patient's family does not want known to the public could be exposed, which can lead to raising health insurance premiums and employment difficulties.
[9] Under the Due Process Clause, family members generally maintain the right to control dissemination of photos of deceased relatives.
[10] Most court rulings regarding autopsy and death scene photos have looked to the precedent set by the federal Freedom of Information Act (FOIA), which determines under which circumstances the release of such images is appropriate and not invasive of any living person's privacy.
[12] The photos exposed the horrendous realities of racial injustice in America and became a rallying call for many influential civil rights figures, including Martin Luther King Jr. and Muhammad Ali.
[11] National Archives and Records Administration v. Favish similarly found that under FOIA, the privacy rights of a decedents' relatives are both acknowledged and prioritized when disseminating autopsy/death scene photos of the deceased.
This decision was made in regards to the death scene photos of Vincent Foster, a deputy counsel to Bill Clinton.
[11] Marsh v. County of San Diego determined that a prosecutor who photocopied and then released an autopsy photo of a deceased child after his retirement could not be sued under the Doctrine of Qualified Immunity.
A major point in the case was whether or not Brenda Marsh had the legal right to control the dissemination of her son's autopsy photos, and though the court determined that she did, it ruled on a technicality that at the time of the events, the law had not yet been "clearly established.
[13] Google requires a lengthy process that involves getting a court order to obtain content from a deceased user's account.
[13] In response to this, NetChoice, a major rival to ULC, proposed the Privacy Expectation Afterlife Choices Act (PEAC), which included much more stringent guidelines for giving fiduciaries access to digital accounts and was overall considered to be much more privacy-centric.
This new legislative proposal incorporated more privacy centered aspects that aligned more with those of PEAC, which even gained it the support of NetChoice.
However, critics of the new legislation contest that its transformation still not does give much consideration to a decedent's post-mortem privacy of the information kept in their account.
[5][19] Most states acknowledge a specific duration for post-mortem publicity rights, which generally range between forty and one hundred years.
[18] Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. established the right of publicity, granting individuals control of the commercial use of their identity.
Discretion regarding the use of such digital personas is entirely up to whoever owns the right to that celebrity's image, which inevitably opens up the possibility that the decedent's interest is not being prioritized.