Does your death void your email privacy rights?

The case

Recently, Lance Corporal Justin Ellsworth died in the war in Iraq. His parents, wanting access to his last communications for a scrapbook dedicated to his life, asked his private email provider (Yahoo!) for access to his account. Yahoo! denied the family’s request citing their company’s privacy policy of not allowing an outside party access to a member’s account and another internal policy stating that accounts are terminated upon the user’s death. Recognizing that this case has farther-reaching legal implications than their internal policies, Yahoo! encouraged the Ellsworths to let the courts decide the issue. The case is currently pending. According to IP Law and Business Magazine, this is the first case of its kind, and brings a number of legal questions to mind.

The legal questions

Had Corporal Ellsworth printed off his emails and stored them with his belongings this wouldn’t be an issue, the emails would be considered part of his personal effects and turned over to his family with the rest of his estate. The family is arguing that because of this the account should be part of his estate. Yahoo! argues that they own the account and that when Corporal Ellsworth signed up for their service he agreed to their terms of use (which state that they own the account). No case like this has ever been tried, and ownership and privacy issues surrounding email and other electronic communication may be decided once and for all in the near future.

The privacy issue

One side of this argument is being championed by privacy advocates. What if you don’t want to your family to have access to your emails after you die? If you have an account with most (if not all) major email providers, you agreed to their terms of service which state that your account information will never be turned over to a third party, Knowing this, wouldn’t you expect that the communications you are making through email can never be accessed by your parents or spouse? Suppose the courts rule that an email account is property of a person’s estate when they die, there is potential for a large amount of information that a person would not want to divulge to their family that could be divulged through their emails. Suppose a spouse learns of infidelity, or worse, misconstrues an email as evidence of infidelity because he or she is given access to their spouse’s account, and the deceased’s image is tarnished forever.

According to and article by an Army Judge Advocate posted on the Electronic Freedom Foundation’s website, the military has begun to tell soldiers in war zones that if they want their families to have access to their email accounts in the event of their death that they should give them their username and password. In this case, Corporal Ellsworth did not share that information with his family.

The precedent

When someone dies, his or her regular (snail) mail becomes property of their estate, and is free to be opened by their next of kin. The same is true with private diaries or journals kept by the deceased. Anyone who saw the movie The Bridges of Madison County knows that if you write about an affair in your diary and you die, your children are most likely going to read it. These are private communications, so why does email get a special protection?

Historians argue that private correspondence between people give later generations an insight into the past. Excerpts from letters from presidents to their friends and families are printed in school history books, and books filled with private letters from Civil War soldiers to their families have been best sellers. If the user only stores their emails in their accounts, these communications are lost upon their death, and no future generations will be able to access them.

The solution

I would argue that email accounts should not be made a part of a person’s estate after their death. The answer to this problem can be solved through public awareness. In the event that the deceased leaves no instructions for their email accounts, access to them should not be granted to anyone. Hopefully, this case will educate the public about this issue and what provisions can be taken in the event that one wishes for their account to be accessed by their next of kin. People can add usernames and passwords for their accounts to their wills if they want their family to have access to them, or they can simply print the emails out that they deem important or store them electronically on their hard drives. A blanket law that allows any third party access to an email account does violate the user’s privacy rights, and should not be granted by the courts.

Bibliography

Kopetski, Matthew. “US Army Memo on Safeguarding Email Privacy in Case of Death,” Electronic Frontier Foundation. Available online: http://www.eff.org/Privacy/Email_Internet_Web/
memo_to_soldiers.php.
Accessed 25 March 2005.

Rasch, Mark, “Should e-mail accounts perish along with their owners? A corporal's death starts a conversation about electronic rights,” IP Law and Business, Vol. 5, No. 3. March 15, 2005.