-------- Original Message -------- Subject: Re: [Politech] Peter Swire on a felled soldier and Yahoo's privacypolicy [priv] Date: Thu, 23 Dec 2004 00:42:07 -0500 From: James Maule <maule@private> To: <declan@private> There's another interesting, and confusing twist to Peter Swire's analysis. Courts have long held under princicples of public policy, that a decedent cannot direct the destruction of property after death. Thus, even though one can light a proverbial cigar with a proverbial rolled up $20 bill, one cannot order one's cash burned after death. Nor, according to several cases, can one order the razing of one's home (even if one could do so during lifetime), and this is an issue aside from permits and environmental concerns. The classic hypothetical of the love letters that the decedent orders burned puts on the twist by positing that the love letters have value. In fact, the more secrets, the deeper the secrets, the more widespread those impacted or interested in the secrets, the higher the value of the love letters. Thus, for celebrities the issue reaches a peak because generally their letters would have higher value. For many of the rest of us, the value is lower. For some folks, the value could be so low as to be negligible, making destruction of the letters less likely to fall afoul of the "no destruction of valuable property after death" public policy doctrine. How do privacy rights affect these mattes? Well, a will isn't private, and hence the advise to use a trust. So a direction in a will to destroy love letters (or love emails) would alert the public that they exist, whereas a direction to a trustee to whom the letters are bequeathed would be private, at least as among the parties or until the matter is made public through litigation. There is a huge issue here for estate planners. I get my students very disturbed when I ask them to think about a possible premature death and the contents of their laptops and email accounts. A hush settles over the room, broken by sighs and groans. Jim Maule Villanova University School of Law -------- Original Message -------- Subject: RE: [Politech] Peter Swire on a felled soldier and Yahoo's privacypolicy [priv] Date: Thu, 23 Dec 2004 23:06:18 -0800 From: Ray Everett-Church <ray@private> To: 'Declan McCullagh' <declan@private>, 'Peter Swire' <peter@private> FWIW, that was the same point I made in my conversation with the almost-as-swanky CNET News.com. ;) (http://news.com.com/Yahoo+denies+family+access+to+dead+marines+e-mail/2100-1038 _3-5500057.html) The article didn't quite capture the deeper point I was making or my suggestion, for example, that a probate court might order the emails be considered part of the estate to be released to the executors (who might or might not be his parents). Meanwhile, while I agree that the privacy policy must be adhered to, Yahoo's slavish citation of the policy as irretrievably binding their hands was needlessly callous. Yes, following a consistent policy is very important, but have a policy that has flexibility for such difficult circumstances. Given Yahoo's history of reflexively turning over user PII every time some dippy CEO of some penny-stock company was allegedly libeled on a message board, it just boggles the mind that they decide to get stubborn over a dead soldier. Perhaps nobody had the creativity there to suggest an order from a probate court would give them every bit as much cover as the fishing expedition subpoenas they get by the bushel basket. Happy holidays! -Ray -------- Original Message -------- Subject: Re: [Politech] Peter Swire on a felled soldier and Yahoo's privacy policy [priv] Date: Thu, 23 Dec 2004 13:44:03 -0500 From: James Grimmelmann <james.grimmelmann@private> Reply-To: james.grimmelmann@private To: Declan McCullagh <declan@private>, peter@private References: <41CA4CA5.2040208@private> On Wed, 22 Dec 2004 23:42:13 -0500, Declan McCullagh <declan@private> wrote: > > _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. Why is it not a complete answer to this question to say that Yahoo's terms of service, which constituted the contract between Ellsworth and Yahoo, are controlling? Some people want their emails accessible by their families after their death. Some people don't. Shouldn't these two groups of people be able to choose by contract which will be the case? Either way, the best solution is the one that most respects the wishes of people when they're alive; I can easily see major email providers (in the wake of stories like this one) starting to add a check-box in their account preferences that asks whether the account should automatically be deleted on death or whether the provider should await instructions from the estate. Most of the reasons you cite for or against turning the emails over provide strong arguments against imposing one mandatory outcome or the other. James -------- Original Message -------- Subject: RE: [Politech] Peter Swire on a felled soldier and Yahoo's privacypolicy [priv] Date: Thu, 23 Dec 2004 09:13:27 -0500 From: Richard M. Smith <rms@private> To: <peter@private>, "'Declan McCullagh'" <declan@private> Hi Peter, I still vote for the executor being able to get email account passwords upon making a request in spite of your cautions. When a person dies, are there any personal things that an executor typically wouldn't have access to? As an aside, once the executor had an email password, they could get other Web site account passwords to see what someone was up to. The same email and password might work at Amazon for example or if the password was different, Amazon will email the Amazon password to the email account. A person's cookie files, cache, and browser history could be used by an executor to see what sites might have accounts for the dead person. Richard _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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