Father's fight for dead son's e-mails touches off debate over privacy

Posted on Wed, Dec. 29, 2004

Chicago Tribune

WIXOM, Mich. - (KRT) - The father in suburban Detroit and the 20-year-old Marine son in Fallujah agreed to trade photos - a way to stay close during the war in Iraq. In October, the father caught a good one, an orange ball rising over a steam-covered lake, and e-mailed the son: "Beat that sunrise."

"Well, he did," John Ellsworth recalled. Only his son's reply - a photo of a golden orb hanging over the Euphrates River - came from a gunnery sergeant who found a disk marked "for Dad" in Justin Ellsworth's belongings and e-mailed the photo after a roadside bomb killed the Marine on Nov. 13.

The photo only intensified John Ellsworth's desire to know his son's movements and thoughts in Iraq - things he's quite certain were documented in e-mails to and from dozens of friends back home.

"There's unfinished business," John Ellsworth said. "I just want to know."

This grieving father's effort to digitally preserve his son's legacy is now a major privacy debate, a decade after the dawn of Internet consumerism. Ellsworth has appeared on nearly every major television network in the past week, pleading with Internet giant Yahoo to release his son's private e-mails to the family.

Yahoo has so far denied the request, citing a policy Justin Ellsworth had to agree to when opening his e-mail account: "You agree that your Yahoo account is non-transferable and any rights to your Yahoo ID or contents within your account terminate upon your death."

Other large e-mail providers, such as Microsoft's Hotmail, have provisions for transferring e-mail accounts of the deceased to next of kin. But Yahoo, which has some 40 million e-mail accounts, remains steadfast in the need to preserve post-mortem privacy of both the senders and receivers of e-mail.

"Our hearts do go out to the Ellsworths and any family that goes through this kind of loss," said Yahoo spokeswoman Mary Osako. "E-mail involves many individuals who have privacy expectations as to the content of their communications."

Privacy experts are split over how to resolve the quandary.

Some argue that Yahoo should lighten up. Chicago-Kent College of Law professor Harold Krent noted that in common law, senders of traditional mail hold no copyright or right of privacy. He likened Justin Ellsworth's e-mail account to other possessions that would naturally go to the executor of his estate - in this case, his father.

"It happens with safety deposit boxes," Krent said. "People just haven't thought of Yahoo as a giant safety deposit box."

Others argue that the tragedy of one family should not sacrifice the privacy of millions of others.

"Obviously, this is very difficult for the family, but I think Yahoo is doing the right thing," said Marc Rotenberg, executive director of the Washington-based Electronic Privacy Information Center. "Once you start creating exceptions, the privacy rights begin to erode."

Because Yahoo's policy so clearly states that survivors have no rights to e-mail accounts of the deceased, any deviation to benefit the Ellsworths could raise the ire of the Federal Trade Commission, some privacy experts suggested. In recent years, the FTC has cracked down on a variety of firms, including Microsoft, online advertising company DoubleClick and computer chip maker Intel, for alleged privacy infringements.

"They tend to be hard-nosed about privacy policy and tend to believe it should be enforced right down to the letter," said David Bender, a privacy attorney in New York City.

Emotions run so high over the Ellsworth-Yahoo dispute that some strangers have taken their blunt views directly to a family message board meant to memorialize Justin Ellsworth.

" ... (J)ust look at your own e-mail account and ask yourself if you would like to have it exposed to your family when you die," said "Anson," a message-poster from Washington, D.C. "While I do love my family, I certainly would not want them to have access to my personal e-mail accounts. This is an unbelievable violation of his privacy post mortem. For shame!"

Such critics simply don't understand his family, John Ellsworth said.

"People are worried about what we're going to find," he said. "I'm more concerned about what his state of mind was."

Justin Ellsworth, 20, arrived in Iraq on Sept. 11. A 2003 high school graduate, his trademark was a black cowboy hat that now hangs in the front hallway of his father's home. He was a fan of country music, especially the songs of Kenny Chesney, and planned to start an excavation business after leaving the Marine Corps.

In Iraq, he was in the 1st Marine Expeditionary Force, a combat engineer and explosives expert in a platoon doing construction work. But as John Ellsworth later learned from his son's gunnery sergeant, Justin volunteered in his last days for foot patrols in Fallujah designed to evacuate civilians from the impending battle.

"Justin was very strong about the good work they were doing over there," John Ellsworth said. "He said, `Dad, I'm saving lives every day.'"

Their last conversation was on Nov. 3. "He just said, `I'm OK. I love you. Tell everybody I love them. I will talk to you after Thanksgiving,'" John Ellsworth said. "He knew things were going to get serious."

For weeks Justin Ellsworth had carefully rationed his time on phone calling cards at an expensive Internet cafe in a military camp near Fallujah. He would go online just long enough to download e-mails to the hard drive of his laptop or upload dispatches he'd drafted offline. He regularly calmed his family's nerves with notes of his well-being and expressed homesickness when he missed the annual family hayride at Halloween.

The son and father had agreed to save all of his e-mails to create a scrapbook when he got home. Now, that scrapbook is more important than ever.

"We just want to know anything about his thoughts and feelings in that last week," said Debbie Ellsworth, Justin's stepmother. "Everything has ended for John - his bloodline, his namesake, this is all he has left."

The laptop, which military officials have told the family they will eventually receive with the rest of Justin's possessions, may prove helpful. But the family is concerned the scrapbook will be incomplete without the full record of Justin's e-mails - a record only Yahoo maintains.

John Ellsworth said he made his first request to Yahoo before Thanksgiving.

"I tried to do this without any kind of litigation or publicity," he said. "What got me fired up is Yahoo wouldn't even take my calls to discuss it. I don't want anybody else to get caught in the same trick bag. Hopefully, this will make them change their policy."

Yahoo spokeswoman Osako acknowledged this is not the first time the company has received a request for e-mails of the deceased. But the company declined to provide specifics or explain how those instances were resolved.

"We're looking for a path that upholds privacy and satisfies the family's concerns," Osako said.

That path appears headed through court. The Ellsworths have retained an attorney, Brian Dailey, who is in the process of filing probate paperwork that would formally appoint John Ellsworth as executor of his son's estate. Then they'll formally argue that Justin's e-mails are part of the estate, ask Yahoo to release them, and seek a court order if the company declines.

Such a court order would give Yahoo some wiggle room to satisfy Ellsworth's demands and uphold its privacy policy for all others who seek e-mail without court orders, legal authorities said.

A more permanent solution, according to some privacy experts, might be clearer e-mail policies that would allow users to specifically designate whether they wanted account information passed on to heirs in case of death.

"It's not about what Yahoo wants or what the family wants," said George Washington University law professor Daniel Solove. "It's about what the deceased wanted."

Last modified date and time: 01/17/2005 8:41