Parental vs. privacy rights


January 30, 2005

In the last months of his short life, e-mail linked Marine Lance Cpl. Justin Ellsworth to his parents in Michigan, who relied on it to track his tour of duty in Iraq.

So when a roadside bomb killed Ellsworth on Nov. 13, it seemed reasonable to John and Deborah Ellsworth that their 20-year-old son's e-mail account, which had become his primary form of communication with the family, should be handed over to them, just as his uniform and other personal effects had been.

But in a case pitting parental passion against privacy rights, the young Ellsworth's e-mail provider, Yahoo, is refusing to relinquish the account, resulting in a legal battle that could affect everything from the way people write their wills to the way they write their e-mails.

Experts in privacy and Internet issues say the case underscores the need for people to spell out what they want done with electronic correspondence should they die, since such correspondence is held by third parties - in this case Yahoo - unlike diaries, hand-written letters, or other objects in one's estate.

"Most people just divide up the tangible physical items," said Daniel Solove, a professor at the George Washington Law School whose new book, "The Digital Person: Technology and Privacy in the Information Age," looks at issues related to people's increasing reliance on computers. Few people consider such things as passwords and e-mail accounts, making it likely that courts will increasingly be asked to craft new laws geared toward today's on-line lifestyles.

"Should these e-mails be destroyed unless people have something specifically in their wills to preserve them?" Solove said. "I think that's ultimately what the courts are going to have to figure out. What should the rule be when there is silence?"

Yahoo says its policy is intended to protect account holders' privacy. Customers accept terms that state that their accounts will be terminated upon death, or after 90 days of inactivity. That means unless the Ellsworths can figure out their son's password, or persuade Yahoo to make an exception, correspondence he had saved will be wiped out early next month.

"The commitment we've made to every person who signs up for a Yahoo mail account is to treat their e-mail as a private communication, and to treat the content of their messages as confidential," company spokeswoman Mary Osako said in a statement.

Ellsworth's family says Justin had told them he wanted his correspondence from Iraq preserved. Strangers as well as friends and relatives sent Justin a constant stream of e-mails after his September deployment, and Justin planned to print out the messages and create a scrapbook when he came home, his father said in December after going public with the family's dilemma.

"They were letters of encouragement," he said.

The family has hired the Michigan law firm Dailey & Stearn to help in their fight. Lawyers last week advised the Ellsworths to stop speaking publicly about the case and did not return phone calls, leaving several questions unanswered.

Among them, why, if Justin Ellsworth wanted his e-mails shared, he did not leave his family his password the way someone might leave the keys to a safety deposit box with a relative.

Some legal experts, as well as members of the public who have weighed in on the issue on Internet chat sites, have also questioned whether the elder Ellsworth has his late son's best interests at heart, or if his judgment is clouded by grief.

Indeed, John Ellsworth has said that in addition to building a scrapbook, he simply can't bear the thought of losing this last shred of Justin's life. "It's the last thing I have of my son," he has said of the e-mails.

Kurt Opsahl, an attorney with the Electronic Frontier Foundation, a nonprofit organization that monitors Internet issues, said Ellsworth's arguments are compelling. "But I also think privacy rights should continue even after somebody is deceased," he said, noting that Ellsworth would gain access not only to e-mails he and his son had exchanged, but to all the correspondence his son maintained.

"How many of us would want our parents to review all of our e-mails? It may tell them something about their child that will be different from their impression," he said.

Speaking generally, Opsahl said he opposed any parent reading a dead child's personal e-mail or diary, "out of respect for the child's privacy."

The issue has spurred passionate on-line debates, which indicate sympathy for the parents but grudging acceptance of Yahoo's stance.

"The kid could have cc'd his parents every time he wrote an e-mail," one person wrote. "These were not meant for his parents. The people who received them can give them up to the parents if they wish."

"If this deceased person wanted his family to have access to his personal e-mail account, he would have given it to them," wrote another. "We do not know what his intent was and can only assume that he wanted his account kept private."

The debate has even erupted on a Web site dedicated to Ellsworth's memory,, where most oppose Yahoo and have offered suggestions to John Ellsworth on how he might crack his son's password.

Ellsworth has admitted trying, and failing, to do just that. For now, the family is hoping that if Ellsworth is named executor of Justin's estate, he will be able to have the account declared part of the estate and press his claim to it.

Even if it were, Solove said Ellsworth would be wise to consider his motives before checking his son's mail, since as executor his job would be to look out for Justin's interests, not his own. "So he has to think what would his son have wanted," said Solove. "If he believes in good faith his son would have wanted these e-mails to be seen ... that decision should stand."

Last modified date and time: 01/30/2005 20:08