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

Reminds me...

[glrotate]

of that comedian joking about not wanting to die because of the dread of his parents finding the "porn wing" of his apartment.

Re:Reminds me...

[chazwurth]

That would be Bill Hicks. It's a great bit, and it's available on a CD called Relentless.

Value

[Robert Hayden]

Since the messages may be valuable (although probably are not), shouldn't it be a simple matter to claim they are part of the estate and get a TRO and be done with it?

After all, the copyright is held by the decedant, so wouldn't that material value pass to his heirs?

Re:Value

[Ironsides]

If this was about regular old pen and paper snail mail letters, there would be no doubt that the letters would belong to the estate. However, due to the clause in the T&C of Yahoo!, they are saying that either they own them or no one owns them. I guess what the father is trying to do is get the emails set on the same level as snail mail. Also if they were a confided in letter, why not just delete them after you are done with them? Or save them someplace and delete them off the yahoo server?

On the other basis for this, is that the son was keeping a journal/log using the email that he (the son) was saving. He wanted them to stay around and told his father about this. That is why he is trying to get access to the emails.

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.

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.

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?

I want to take it with me

[drteknikal]

If you want people to have access to your accounts, you had better document the accounts, the passwords, and the access methods for them before you die.

Why should my survivors get access to stuff in my virtual world after I die if I never gave them any rights to it while I was alive?

I understand, or at least I think I understand rights of survivorship. I have sympathy for those who have lost a loved one, but I don't see how that makes any legal difference.

So let's say that I'm involved in a bunch of stuff that I don't want my survivors to know about, and we automatically give them rights to my virtual stuff when I die. They find out what a bastard I am, and their memories of me are forever saddened.

Here's the opposing question: If we start handing out access to online resources when the account holder dies, don't we also have to make everything include an option to delete upon the death of the account holder?

Re:Not just email

[AviLazar]

While in college I worked for three different banks - and each were under the same federal regulations (duh). A person brings a short notice (a brief one page showing that the person died - gotten at the county office) and the person proves they are responsible for the estate then they get access to the account. No court order needed. The only time this becomes an issue is when next of kin start fighting over the property - otherwise, it goes to next of kin. IF next of kin are fighting then the court provides an order to the bank to not allow anyone to access the box until further notice.

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).

I've dealt with something similar

[climb_no_fear]

An old girlfriend of mine died in a motorcycle crash. While she was still alive, she told me her password for her e-mail account (my name - easy to remember). I only logged into her account once while she was alive (she was standing next to me and asked me to do so), so I know the password was correct. Hours before she set out on her fateful trip, she sent me an email which I only received after getting the phone call. At this point, I tried to log in to her email account to see if she had left behind anything else there but access was already blocked. After the funeral, we cleaned out her apartment. We found her diary (I knew she had one). However, she never explicitly said anything to me about whether I should read it. Diaries are a private matter, so when her stepfather gave it to me (her mother had passed away already and her half-brother was just too young), I went over to her best friend's house, we talked about it and decided that we would burn it in the fireplace together. My point is, common sense should have some say. In spite of any agreements with Yahoo!, etc., if my name is the password and I know it, wasn't this proof enough that she had agreed that I should be allowed to access her email? On the other hand, without explicit permission, I'd never read someone's diary, it's too private. Perhaps his Yahoo! account was Justin Ellworth's diary of sorts ....

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

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).

The yahoo account is not property.

[raehl]

The Yahoo account is an agreement between Yahoo and a person for limited access to Yahoo's storage system.

The copyright in the emails authored by the deceased is owned by the deceased's estate. Yahoo happens to own media on which a copy of the emails is stored.

The deceased has no right to access the copy of the material on Yahoo's media without Yahoo's permission. Yahoo gave the deceased permission to access the material on their media for a limited term, which ended with the deceased's death.

Owning the copyright in a particular material does not give someone the right to look at copies of that material on other people's media. If it did, the RIAA could force you to let them listen to your CD's. If the record company has a huge fire and all their copies of their copywritten material burns to a crisp, they can't compel someone else with a copy of that material to give them access to it.

In this case, the only thing the copyright ownership gives the estate the right to do is demand that Yahoo delete the copies of the email from their servers. And it CERTAINLY doesn't give them the right to look at emails in the account authored by other people which the estate does not have copyright ownership of.

If the deceased's estate has the right to access the deceased's account because they own the copyrights in the email, than any publisher would be able to look at any copy of anything they publish, which is obviously not the case. If the deceased's estate has the right to access the deceased's account because of the agreement between the deceased and Yahoo, then clauses which terminate a contract at one of the party's deaths would have to be invalid, which is also not the case.

No one has the right to access anyone else's property. It doesn't matter if the agreement between Yahoo and the deceased eliminated the "right" of the deceased's estate to access Yahoo's media - that right never existed in the first place. The estate has to prove that Yahoo agreed to give them that right, which they can not.