Dispute Continues Over Posthumous Yahoo! Mail

XPisthenewNT points out BBC coverage of the earlier-mentioned dispute between Yahoo! and the family of Justin Ellsworth. An excerpt: "Police sergeant John Ellsworth has sparked a privacy debate in the U.S. that has prompted many to reconsider who can access their e-mail. Mr. Ellsworth is locked in a legal fight with Yahoo! after his son, L/Cpl Justin Ellsworth, a U.S. marine serving in Falluja, was killed by a roadside bomb."

Comments

Common sense?

[KrancHammer]

IANAL.While I truly respect privacy rights, even after a person is dead, perhaps a little common sense (or adjustment to the appropriate laws) is in order. Why _not_ let the family of this person have access unless that person has a will or last testament that says otherwise? Why proceed from the other direction that assumes the deceased would not want his family to have access even though there is no documentation specifying that?

Re:Sparked a privacy debate in the US?

[big-giant-head]

That kinda brings up a point. Other folks emailed this guy assuming that it was confidential.

I feel for his family, but the other folks involved have privacy rights as well. What if friends emailed him some very private, personal email asking for advice. Email provides more protection, than say snail mail which anyone can read (granted not ALOT more, but at least someone has to have the id and pw).

It Takes Two To E-Mail

[jwilhelm]

The article states "the young soldier had spent much of his spare time e-mailing his folks back home through Yahoo! webmail."

That in mind, why don't the "folks" have the e-mails that he sent to them? Wouldn't you keep (even treasure) the e-mails of a family member, especially if the family member was in a situation where death may be near?

Or even if they deleted the e-mails, I'm sure they replied to them first, so maybe they have copies in their Sent folder.

It takes two people to e-mail, and even if Yahoo! won't release the e-mails I'm sure the OTHER end of the conversation may be more willing to do so.

IAAPOAS I am a parent of a serviceman

[cphilo]

My son has done three tours in the middle East. My husband and I treasured every email that he was able to send, read and reread them and kept them in a special folder with his name. He sent us what he wanted us to know. If he had been killed, I would have respected his right of privacy. The other emails, I'm sure, have to do with gaming, interactions with his friends and military humor (not always tasteful). While getting the other emails may have been nice, anything he wanted us to see he would have forwarded. There is much going on over there that he will not tell us, even now that he is back. I would not have fought the deletion of the emails out of respect and love for my son. I question why it is so important to the family to get the emails.

reset password?

[Transfan76]

I wonder if the family had tried to reset his password. I just tried with my yahoo account. It asked me for my birthdate, zip code, and what country I was in, and the yahoo ID. Then I clicked next. Then it asked me a question, which I gave the matching answer to, and it reset my password. Has the family not tried just going through this process?

Re:Sparked a privacy debate in the US?

[tomhudson]

I wrote:

Since it wasn't a password that was easy to guess, it should be assumed that the son wanted it private

You replied:

No, it should be assumed the son wanted it safe from the hordes of crackers on the internet, not necessarily from his own parents.

I'm sure it's been the target of a few crackers, and they haven't gotten into it either. My daughter and I were having a discussion about passwords, and she told me about how her password was impossible for anyone to guess - so I told her what her password was. Freaked her out, but if you know someone, you can usually guess their password with a few tries.

That the father was unable to says two things - 1) the password was not easy to guess, even by a family member, and 2) it was not intended to be easy to guess by a family member. He DID email them stuff he wanted them to see. So its safe to assume that he DIDN'T email them stuff he didn't want them to see.

You wrote:

Should it also be assumed that a deceased relative didn't want you to inherit their house, because they put a heavy-duty lock on the front door?

Unless the house is specifically willed to me, or there is some legal provision that I get it, then I have no right to it.

I certainly don't have a right to the pay-per-view tv service that they subscribed to. The webmail is a service, not property. The only "property" (the servers, etc) is that which belongs to Yahoo!

I wrote:

The father is engaged in illegal activity (trying to hack another person's account) ...

You replied:

That's debatable. As his son has died, he may now be the owner of that account. Last time I checked, it's still legal to "break-in" to your own property. This is complicated by the fact that Yahoo Mail is a service...

He is no more the owner of the account than he would become the owner to a pay-tv subscription service, or an internet service, or any other service.

I wrote:

Releasing the emails would be a violation of [...] the rights of other people whose emails are there.

You replied:

No, not remotely true. Since e-mail is clear-text, there is NO privacy. E-mail is just like post-cards.

No, email is NOT like postcards. You need a user name and password to access my email, even though it's stored in plaintext. If it's "just like a postcard", why is the father whining (because that's what he's doing) about not being able to read it? Answer - because it's NOT "just like a postcard".

You continued:

If the son wanted to keep something secret, he wouldn't have sent it over the internet, in plain text, he would have encrypted it. In that case, yahoo would be handing over encrypted messages, which the parents wouldn't be able to read.

Hey, RTFA - He DID send stuff to his parents, in plain text, over the internet. It is not Yahoo!'s job to determine the reasons why he didn't send other stuff to them, or to second-guess the account-holder's wishes.

I concluded:

There is NO upside to this.

You replied:

There are numerous upsides to this, and no downside, if handled properly.

What - now I'm going to have to worry that agreements I enter into will be modified posthumously and/or by relatives who "think" they know my wishes better than I do?

If I was Yahoo!, at this point, I'd do the following, so as to assure my 40 million other users that the TOS they agreed to WILL be respected:

1. Deactivate the account NOW - the TOS state that the account stops on death;
2. Archive the contents on a 3rd-party server in a different legal jurisdiction, with instructions to delete the archive when the balan

Re:Value

[1u3hr]

OTHERWISE the estate would retain ownership of the emails and could rightly demand them (all this from reading the fine article)

Yes, TFA says that, but it's wrong. Being the owner of the copyright of something DOES NOT give you the right to demand someone who legally has a copy (as Yahoo obviously does) to hand it over to you, even if as here that is the only copy left. Copyright gives the owner the right to prevent someone else publishing; what's being talked about here is almost the opposite, forcing someone to.

Re:Value

[thpr]

E-mail messages are most certainly expressions of an idea in a tangible medium, therefore the owner, or their surviving family, should be given the e-mails as Yahoo has little legal claim to them

NO, NO, NO. You're confusing the issue. If I run into an author (say Stephen King, for example) and I'm carrying a copy of one of his books, can he demand the book from me because he owns the copyright? Absolutely NOT. I own the physical book, he owns the copyright to the material. I can't publish it, present it, make derivatives, or anything within the control of copyright law, but he DOESN'T OWN THE COPY and CAN'T DEMAND THE COPY from me. Anything less than a clear distinction between those two ideas starts to really mess with the doctrine of first sale and other issues which are fundamental to operating a reasonably private, capatilistic society.

The result is that Yahoo! cannot do anything related to the exclusive control provided in copyright (such as releasing the e-mails) without the permission of the copyright holder. However, deletion or destruction of a copy - especially when explicitly declared in the terms of service - has NOTHING WHAT-SO-EVER to do with copyright law, because copyright law doesn't provide any limit on destruction of a copy.

Yahoo! has NOT claimed ownership of the resulting expressions in the text. It probably does claim ownership of the bits on its hard drives (since it DOES own the drives), and the right to destroy those bits in relation to the terms of service. Nothing in copyright law can prevent them from deleting the material if they so choose.

Terms of service

[Ernesto Alvarez]

IANAL but I've checked the terms of service in yahoo mail's server and I think yahoo is doing the right thing.

Assuming those terms did not change because of this mess, J. Ellsworth should have read this paragraph:


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.


It should be logical to assume that he did not want that mail to be revealed to the public (he wouldn't have chosen yahoo mail if that was the case).

If he did want his mail to be disclosed, he should have had some sort of escrow account (that's one of the things the cc header is for anyway).

The interesting thing is that the family is in a tight spot right now. If they do not prove him dead, they have no right to access his account. His father is definitely committing some sort of crime if he's hacking his account. If they prove he's dead by presenting a death certificate, yahoo could immediately block the account and erase the mail, and that would be ok (if they have not done yet, it is pretty evident he is dead now).

I haven't though of that, but I wouldn't want anybody messing with certain things (like my mail or my private key) when I die, especially if I can easily set up some escrow system in advance (like he should have done if he really wanted his folks to access his mail, after all he wasn't going to a picnic, and he knew it).

Yes, I'm being really blunt, but diplomacy is not one of my strong points (and it's too damn hot in here, so I'm not in my best mood).

Re:Value

[GryMor]

Copyright is irelevent. Hypothetical, I run a mail service, where (as specified in the agreement signed when opening the, non transferrable, account), you give me a letter and I as a service, make a copies of the letter and send it to people you specify. Additionally, as another service, I allow you to examine, and make copies of, the letters you have given me. Now, if you die, your estate gets the copyrights to those letters, but the letters are mine, you gave them to me, copyright limits what I can do with them, but that doesn't mean the letters, as physical objects, are part of the estate, as they weren't yours even before you died, you had allready given them to me.