-------- Original Message --------
Subject: A fallen soldier, Yahoo!'s privacy policy, and what to do
Date: Wed, 22 Dec 2004 19:48:58 -0500
From: Peter Swire <peter@private>
To: <declan@private>
Dear Declan:
I was just quoted on ABC World News Tonight on the story
about the soldier who died in Iraq and his family’s effort to have his
email provider, Yahoo!, turn over the emails to the family. Under the
super-strict time limits of network news, I think that the full legal
context did not come out. So perhaps this posting can give that
context, so that readers can think more clearly about email privacy and
deceased account holders.
Justin Ellsworth was killed by a roadside bomb on November 3
in Iraq. He had often emailed home to his family, using his Yahoo!
account. After he died, his family asked to have his emails turned over
to him.
_The legal situation._ In response to the family request,
Yahoo! said it could not turn over the messages. Under the terms of
service that Justin had signed: “/No Right of Survivorship and
Non-Transferability./ You agree that your Yahoo! account is
non-transferable and any rights to your Yahoo! I.D. or contents within
your account terminate upon your death. Upon receipt of a copy of a
death certificate, your account may be terminated and all contents
therein permanently deleted.” http://docs.yahoo.com/info/terms/
Readers of this list know that violation of a company’s
privacy policy can lead to enforcement by the FTC or a state’s
Attorney-General. In my view, Yahoo! has a very understandable concern
that transfer to third parties after the account holder’s death can be
considered a violation of its privacy policy.
That sets up Yahoo! as the potential bad guy in the press
for cold-heartedly refusing to honor the request of the family of a
soldier who died for his country. Fortunately, I think there is a
straightforward solution that is consistent with the Yahoo! privacy
policy and with common sense.
Yahoo’s policy also says: “We respond to subpoenas, court
orders, or legal process, or to establish or exercise our legal rights
or defend against legal claims.” http://privacy.yahoo.com/ In short,
the family can seek a court order and Yahoo! can turn over the emails
pursuant to the court order.
I hope the tech community and the larger press can get this
simple point – there is a way to address the Ellsworth family’s request,
but the steps to do that haven’t been taken yet.
_The policy question._ The next question is whether
Yahoo!’s approach makes sense or whether instead the family of a
deceased person should be able to see emails automatically. One
possible approach, after all, is to consider the emails as property of
the estate. The executor then would get the emails the way he or she
gets the papers in the house of the deceased. The executor could then
decide how to handle the emails.
That is how we handle paper mail held by the deceased. Here
are some reasons, though, to be a notch or two more careful about
privacy when it comes to emails:
(1) The deceased may indicate in the emails that he or she does not
want the executor or the rest of the family to see the emails. (“Burn
these upon my death without reading them.”) The emails might reveal the
secret abortion of the sister or the secret first marriage of the father
– there are some things that are better not said to everyone in the family.
(2) The emails contain a great deal of information about the
recipients or senders of the email. These are not just the secrets of
the deceased; they are the secrets of many other people.
(3) Court orders are the way for the government to read the contents
of emails for wiretap purposes. There is thus precedent for asking for
a judge to oversee the process before emails are handed over contrary to
a privacy policy.
(4) In the paper world, there may be some love letters to the deceased
or other very private documents. For email, by contrast, there is the
Outbox as well as the Inbox. Everything written by the deceased may
suddenly come into the estate, contrary to the usual outcome in the
physical world.
(5) Emails simply accumulate in much greater volume than postal mail.
The level of intrusion by those reading after the death is thus often
considerably greater.
Readers of the list might well think of other reasons for
being more cautious (or less cautious) about turning over the
accumulated emails to the estate than we do for paper records. For now,
I think the preliminary set of reasons discussed here means we should at
least consider that emails should not automatically go into the estate.
There are some new issues here about the privacy of the individual
compared to the claims of the family.
I suspect this issue will prove interesting to law and
technology folks. There are good reasons to have sympathy for the
family, but good reasons as well to praise Yahoo! about being careful
before opening up all the emails to inspection.
Thanks,
Peter
Prof. Peter P. Swire
Moritz College of Law of
the Ohio State University
John Glenn Scholar of Public Policy Research
(240) 994-4142, www.peterswire.net
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