Who gets to see the e-mail of the deceased?
It's an old story with a new twist. A young marine is killed in the line of duty and his parents request all his belongings, including his correspondence - in this case, his e-mail.Skip to next paragraph
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The Internet company refuses to give out the marine's password, saying that would violate its privacy rules. The parents go to court, causing a storm of discussion on the Net and in the media.
This small episode involving Yahoo! and the parents of US marine Justin Ellsworth raises new and tricky questions about the nature of e-mail. Should it be treated as paper correspondence or as something new? And how much access should relatives have to a record of the thoughts of a loved one who has passed away, especially ones that can be as extensive, intimate, - and even embarrassing - as in e-mail?
In this case, the probate judge ordered Yahoo! to hand over the contents of the account. It complied.
Many bloggers were horrified.
"We thought we had absolute privacy and now we have learned that after our death, a family member could possibly wrangle access to [our] personal space," one blogger lamented on drudge.com.
"If the soldier had wanted his family to read his e-mail, then he would have CC'd or BCC'd them," another wrote.
Yet many legal experts say Yahoo! acted correctly. It denied the family's informal request and only yielded under court order. "I would hope that the Yahoo! position here would become a trade practice - that e-mail would only be released if a judge approved it," says Gerald Ferrera, executive director of the Cyberlaw Center at Bentley College in Waltham, Mass.
For Yahoo!'s part, the company says it still stands behind its commitment to treat each user's e-mail as private and confidential. "We are pleased that the court has issued an order resolving this matter ... and allowing Yahoo! to continue upholding our privacy commitment to our users," says Yahoo! spokeswoman Mary Osako.
But from a legal point of view, e-mail's status is not clear cut. Even the experts can't agree. One law professor describes it as "a property interest," but not intellectual property. Another lecturer on law says absolutely it is intellectual property and is covered by copyright laws.
What makes these legal distinctions more critical is the growing volume of e-mail - and with it rising privacy issues. Free e-mail accounts - some with storage capacities up to 250 MB - allow people to pile up digital photos, documents, and volumes of correspondence without a second's thought. Few people are thinking through the ramifications, says Alan Chappell, a privacy and data-collection consultant.
For instance, "You might have a situation where someone is carrying on an affair and doesn't want his family to know about it if he should die," says Henry Perritt, dean of Chicago-Kent College of Law at the Illinois Institute of Technology. Or a confidential exchange of e-mails might never be meant for a third party's eyes.
The legal solution, Professor Perritt says, is to write a will and bequeath the e-mail to a trustee who is instructed to destroy it. "That would leave no doubt in the service provider's mind about what's supposed to happen," he says, "and it would keep it away from your family."
But that takes considerable forethought.
That gatekeeper role of ISPs and the amount of responsibility they should have in retaining information are among the constant battlegrounds in Internet law, says John Palfrey, executive director of the Berkman Center for Internet and Society at Harvard Law School. For reasons of cost, ISPs are reluctant to keep data indefinitely and then turn it over at a moment's notice, says Mr. Palfrey.
Another area of contention in cyberlaw is whether contracts override other rights such as copyright law, Palfrey adds. The tension here is between a strict legal construction of the contract, he says, "versus an equity or fairness analysis which would say, 'We've put a lot of our personhood and identity into the information we're putting online and it doesn't much matter what this contract says.' "
"In e-mail," he says, "your identity is wrapped up in it in a way that your identity is not wrapped up in your car or some other tangible object."