From the Associated Press - Apr 22, 2005

Dead Marine's E-Mail Raises Legal Issues

The Associated Press

DETROIT - Yahoo Inc. may have resolved its dispute with a family over accessing the e-mail account of a Marine killed in Iraq, but legal experts say such conflicts are bound to be more common as e-mail becomes a crucial component of our lives.

John Ellsworth sought his son's e-mails after Lance Cpl. Justin Ellsworth was killed Nov. 13 while inspecting a bomb in Iraq. But the father didn't know his son's password, and Yahoo said it couldn't break its confidentiality agreement with the Marine.

The family was granted access this week after an Oakland County probate judge ordered Yahoo to do so.

Yahoo had said all along that it would comply with any such order.Henry H. Perritt Jr., a professor and expert in cyberlaw at the Chicago-Kent College of Law, said he knows of no other case where battles over a dead person's e-mail have gone to court, but he expects to see more.

"I think that as it is now, the service providers for the most part just hand it over when they've established death and that someone is the administrator of the estate," Perritt said Thursday. "But they are really just beginning to think about this.

"Other e-mail service providers, including America Online Inc., EarthLink Inc., and Microsoft Corp., which runs Hotmail, have provisions for transferring accounts upon proof of death and identity as next of kin. AOL says it gets dozens of such requests a day.Yahoo's policy, however, states that accounts terminate at death.

Yahoo said it has complied with court orders in a handful of similar situations, but has not changed its policies on privacy.

"We are pleased that the court has issued an order resolving this matter, satisfying Mr. Ellsworth's request as representative of his son's estate, and allowing Yahoo to continue to uphold our privacy commitment to our users," spokeswoman Mary Osako said.

John Ellsworth had argued that his son would have wanted him to have the account. The Marine told his dad that kind e-mails kept him going, and his family wanted to make a scrapbook out of them.

His father now is wading through them - along with spam from mortgage companies and online dating services - and says there are hundreds of encouraging letters from people his son didn't even know.

"It's a great comfort," Ellsworth told Detroit radio station WJR.The Sunnydale, Calif., company's willingness to work with the family isn't surprising considering that many Internet service providers still are trying to figure out the best way to handle such situations, said Julie E. Cohen, a professor of cyberlaw and intellectual property at Georgetown University Law Center.

Though e-mails are akin to medical and financial records that executors routinely access to administer the estates of the deceased, Cohen said, service providers may have been slower to catch up in realizing the importance of making e-mails available.

Perritt agreed with the family's contention that accessing e-mail is similar to accessing a safe deposit box.

"I don't see any reason why e-mail should be different from any other kind of property," he said. "But it's a new twist on an old issue."

Last modified date and time: 06/26/2005 15:43

06/26/2005 15:43