The Abrams Report for December 21, 2004

Transcript: to the 6 p.m. ET show edited to include only the Yahoo portions.
Updated: 12:13 p

Guest: Jonathan Zittrain, Michael Curtin, John Ellsworth, Pam Bondi, David Wahl, Larry Pratt, Barry Steinhardt, Jan Ting

DAN ABRAMS, HOST: Coming up: ...the father of a Marine killed in Iraq fights to read his son's e-mail, but Yahoo! says its e-mail accounts are private and won't open the account to the family. We debate.

...edit...

ABRAMS: Now to a story about one family that can relate to losing a loved one and a soldier. Twenty-year-old Lance Corporal Justin Ellsworth, a Marine in Iraq, was killed by a roadside bomb in November. Throughout his tour of duty, he sent e-mails to his family and friends, letting them know he was OK, telling them what he missed about being home, wishing them a happy Halloween.

Now that Justin is gone, his family wants to save his incoming and outgoing e-mails. They say it's their only way to hold onto the last words of their son. Sounds like a reasonable request from a mourning family. But there's a problem. Justin used Yahoo! as his e-mail provider, which protects access to his account with a password, one his parents don't know and haven't been able to figure out. And when Corporal Ellsworth signed up for an e-mail address, he agreed to Yahoo!'s terms of service, which clearly explain that all accounts are terminated upon death. So far, Yahoo! has refused to give his parents access to their son's account, and the Ellsworths they say they are fighting a race against time because Yahoo! terminates all accounts left inactive after 90 days.

"My Take"-I can't even imagine what this family is going through. This has got to be so difficult for them. And in almost any case, I'd want to give them just about anything that they want. My concern is that I'm not convinced that we know what their son would have wanted. If there's any indication he would have been OK with this, that he wanted this, then I say give them access. But absent that, who knows what he wrote in those personal e-mails about his parents, for example?

What we know for a fact is that Lance Corporal Ellsworth signed an agreement with Yahoo!, where he agreed that his account would be destroyed. Maybe he relied on that. We're going to talk with Ellsworth's father in a moment, but first, joining me to debate is estate law attorney, Michael Curtin, and Harvard law professor and expert on Internet law Jonathan Zittrain.

Gentlemen, thank you very much for coming on the program.

JONATHAN ZITTRAIN, HARVARD LAW SCHOOL PROFESSOR: Thank you.

ABRAMS: Appreciate it. All right, Mr. Curtain, what am I-am I getting something wrong here? I mean, it seems to me that this is a horrible, horrible case, but the bottom line is that we don't know what this young soldier would have wanted.

MICHAEL CURTIN, ESTATE LAW ATTORNEY: That's right, we really don't know. But what we're talking about is basically a property right, in my view. And it would seem to me that the next of kin-in this case, the corporal's father-has the legal authority through the probate court or the family court in Michigan to be the spokesperson for the estate, the executor or the personal representative. And he is seeking to establish a property right. It's no different than if it was a printed manuscript, if it was a bank account or anything else.

ABRAMS: All right, you know what I want to do? John Ellsworth, the father of Justin Ellsworth, has just been able to join us. So why don't we continue with this debate in a moment. I want to get right to Mr. Ellsworth.

Mr. Ellsworth, thank you very much...

JOHN ELLSWORTH, WANTS ACCESS TO HIS SON'S EMAIL: Thank you.

ABRAMS: ... for taking the time to come on the program.

ELLSWORTH: Thank you for having me.

ABRAMS: All right. So tell us what you've been doing and what Yahoo! has been saying to you so far.

ELLSWORTH: Well, basically, we're at a stalemate with Yahoo! There's, obviously, their policies that they want to follow, and I can appreciate that. However, in this case, this particular case, we also have word from Justin where we were saving the e-mails. He was going to forward those to me, and we were going to save them in a book. We actually have corresponded e-mails back and forth that can state that. And that's kind of where it stands.

When I called Yahoo!, I talked to customer service and then their legal department, and they are steadfast in their position that the policy stands. And so I'm running out of time.

ABRAMS: What do you say to the concern that we don't know sort of what your son would have wanted, that maybe he had written things about his family or his friends that might be something that, even upon death, he wouldn't want someone to read? Do you have any indication that he wanted - - he would have wanted it this way?

ELLSWORTH: Actually, I do. Like I said, we've exchanged e-mails stating that, you know, we were going to print those out. And actually, we had joked back and forth that when he got out, we were going to print those in a manuscript and sell it as a book and make millions. But obviously, that's not my concern right now.

My concern is keeping these e-mails for his brothers and sisters, to make sure that they have an accurate account of just who their brother was. And as far as if I'm concerned about things, you know, for years we've written letters from, you know, the front, and we have books from letters from the front. And it's been no different than the U.S. Postal Service. Now, because we have them in cyberspace, I'm just trying to retrieve the letters that are out there. It's no different than the United States Postal Service. However, the United States Postal Service will forward them to the next of kin.

ABRAMS: But is there a difference, in that you're going to get access to everything that he's written? I mean, as opposed to with the Postal Service, you're just asking for letters, for example, that have been written to particular people.

ABRAMS: No, actually, the Postal Service will turn over all his mail, including unopened letters that he has received because they are part of his property.

ABRAMS: Received or written?

ELLSWORTH: Both, because they are part of his property. I will get all his personal property. The problem I'm having is, obviously, the e-mails I cannot retrieve because it's from a third party, which is Yahoo! in this case.

ABRAMS: Is there any way that they've told you that maybe they can sort it out, where, you know, you could get access to any interchanges between you or anything that he had written, as opposed to what other people had written to him? I mean, is there any sort of deal that Yahoo! seems willing to work out with you here?

ELLSWORTH: At this point, there really has been no deal-making. We haven't had any real conversation, other than they've been really steadfast it's a policy that they will not release any e-mails once the person has passed on, that they are destroyed after a certain inactive period.

ABRAMS: How are you holding up in general?

ELLSWORTH: It's rough. We went through a lot of things. The community outpouring has been wonderful. The United States Marines are behind us. They're behind us in this venture, as well. They feel-in fact, I saw a comment from the commandant of the Marine Corps, said, Lookit, they're no better than the United States mail. We would forward on that United States mail. And to me, that made me feel a little bit better that I am fighting the right battles.

ABRAMS: Sir, good luck to you in whatever you choose to do. You know, we can sit here and have a technical debate, a legal debate in my next block, but you know, that doesn't-that doesn't answer the questions that you've got to deal with, and your desires. So thanks very much.

ELLSWORTH: Thank you very much.

ABRAMS: I appreciate it.

ELLSWORTH: Thank you very much.

ABRAMS: All right, coming up, we are going to have that debate, as the question of does Yahoo! still have an obligation to protect Justin's privacy? Some say yes. We'll finish our debate in a minute.

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Your e-mail, abramsreport@msnbc.com . Please include your name, where you're writing from. I'll respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS: We just heard from a man fighting for access to his son's e-mail after the 20-year-old was killed in Iraq. Justin Ellsworth's family wants to hold onto his last words and thoughts. Obviously, they're not going to get another e-mail from him. The problem: Justin agreed to Yahoo!'s terms of service when he created his e-mail account, and those terms guaranteed his personal files would never be turned over, even after he died.

All right, joining me once again to debate is estate law attorney Michael Curtin and Harvard law professor and expert on Internet law Jonathan Zittrain.

Professor Zittrain, it is a sympathetic position that the father has, but again, it seems to me that they have a difficult argument here, in that the son signed a document which is pretty clear.

ZITTRAIN: Well, Dan, I think you're absolutely right. And as you hear Mr. Ellsworth tell his story, your heart goes out to him. I mean, it would clearly make the world a better place to be able to turn this e-mail over. But I think we have here a great example of the law of unintended consequences, and I think Yahoo! finds itself, through its own terms, boxed in a corner. It really can't release this e-mail without running into trouble possibly with the Federal Trade Commission, with others that try to keep an eye on privacy policies and say, If this is your policy, you have to adhere to it.

ABRAMS: What if they can show-and I asked him about the intent of his son. What if they can show that his son intended that all of these e-mails be saved and that his father have access to them? Could that change anything?

ZITTRAIN: Well, it might prospectively change things. I think probably they're huddled at Yahoo! right now, trying to figure out how in the future to write a policy that maybe permits somebody to check a box or to otherwise indicate that they'd like to have this sort of thing happen if something terrible should befall them. People really do plan for these kinds of eventualities.

But retrospectively, I still think they're stuck. Any e-mail they might have from Justin to other people, talking about it is just-it's sort of outside evidence. It's not a direct instruction to Yahoo!...

ABRAMS: Yes.

ZITTRAIN: ... to waive that aspect of the policy.

ABRAMS: Here's what he agreed to when he created his e-mail account. "You agree that your Yahoo! account is non-transferable and any rights to your Yahoo! ID or content within your account terminates upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted."

I don't-I just-Mr. Curtin, I don't see how they get around this.

CURTIN: Well, first of all, you just quoted, Dan, that "may be terminated." They didn't say that it would be terminated.

ABRAMS: The first part says the contents-"any rights to your ID or contents within your account terminates upon your death."

ELLSWORTH: That's right. They terminate as to him, but it is a property right, and if there is somebody who steps up not with a power of attorney necessarily but with legal authority, whether it's given by the probate court or the family court, that, in this case, Justin's dad has ostensibly the legal authority to obtain this. If they were hard copy and not on a computer disk or not on-in his hard drive, there'd be no question it would be a hard copy...

ABRAMS: Right.

CURTIN: ... which he would be entitled to pick up.

ABRAMS: It says non-transferable, right?

CURTIN: That's right. But now, remember, the person with the legal authority-in this case, Justin's dad-he can modify that term. I don't understand how Yahoo! feels somehow they are exposed to Justin and or his family, when the person with the legal authority to say, If that's what you think the contract says, then we are here as his legal representative, wanting to modify that contract.

ABRAMS: What about that, Professor Zittrain?

ZITTRAIN: Well, again, I think Michael speaks sensibly. He sort of has equity on his side here. And there may be a little bit of wiggle room with that word "may" that was in the clause that was just up on everyone's screen.

But again, the fact is, I'm sure Yahoo! wants to do the right thing. They've got two big worries. One worry is the worry that you said at the very beginning, Dan, that it's not clear what Justin would have wanted. It's just not something they can assume one way or the other, and in an abundance of caution, they might have to hold back. And the other big worry is that they will run afoul of the privacy advocates and those government authorities that are enforced independently with enforcing privacy rights.

ABRAMS: Professor, is it true that if it had been the Post Office, they would be able to get all of his letters, both the ones that had been sent to him, unsent, ones he's received, et cetera, anything that he had written or received from the Post Office, even if it was still in the hands of the Post Office, would be the property of his parents?

ZITTRAIN: Well, I'm not sure even he would have been able to go to the Post Office and retrieve mail that he himself had entered into the stream of the Postal Service. What the postal analogy really says to me that might be instructive here is that Yahoo! might choose to put what they call a "bounce message" on his account, so people prospectively writing to him will get back a message that says, Please write to the following address to reach Justin's father. We have some awful news to tell you. And it also suggests that Justin's father can be in touch with everybody who had, in turn, been in touch with Justin and ask for the copies of the mail that were in their outbox aimed at Justin and the mail that came from Justin, and that way, in a distributed fashion, try to put together the scrapbook.

ABRAMS: Mr. Curtin, very quickly (UNINTELLIGIBLE) I know what you think should happen. Do you think that the Ellsworth family is going to win this one?

CURTIN: I think they will. I think that what'll happen if there's not an agreement worked out with Yahoo!, the family court or the probate court in Michigan is likely to enter an order that I don't think Yahoo! will tamper with and will quietly provide what the family wants.

ABRAMS: Tough case, tough case. I want to know-I want to-I want evidence as to what Justin wanted, and that could sway me.

CURTIN: I think you have it. I think his comments, I want to put a scrapbook together, this is my life, and I want this history preserved...

ABRAMS: Yes, but...

(CROSSTALK)

ABRAMS: I don't know that that means every single e-mail he wrote, though. That's the problem. But anyway, we shall see. I feel very badly for the family here, regardless, and I certainly, as I said before, wish them the best. Michael Curtain and Professor Zittrain, thanks very much. Appreciate it.

ZITTRAIN: Thank you.

CURTIN: Thank you, Dan. Thank you, Professor.

Last modified date and time: 01/17/2005 8:40