After death, a fight for digital memories
No clear laws of inheritance cover Web data

By Ariana Eunjung Cha
Updated: 4:31 a.m. ET Feb. 3, 2005

WASHINGTON - Stationed in a remote corner of Iraq, Marine Corps reservist Karl Linn's only means of communicating with the outside world was through a computer. Several times a week, the 20-year-old combat engineer would log on and send out a batch of e-mails and update a Web site with pictures of his adventures.

For his parents in Midlothian, Va., the electronic updates were so precious that when he was killed last week in an enemy ambush, one of the first things they did was to contact the company that hosted their son's account. They wanted to know how to access the data and preserve it.

But who owns the material is a source of intense debate.

Linn's father, Richard, said he believes the information belongs to his son's estate, just like his old high school papers, his sweaters and his soccer ball, and should be transferred to the next of kin. The e-mail and Web hosting company, Mailbank.com Inc., said that while it empathizes with the family's situation, its first priority is to protect the privacy of its customers. It refuses to divulge any information about the accounts.

As computers continue to permeate our lives, what happens to digital bits of information when their owners pass away has become one of the vexing questions of the Internet age. Much of that information is stored in accounts on remote servers and has no physical manifestation that can be neatly transferred. There are no clear laws of inheritance, meaning that Internet providers must often decide for themselves what is right.

Internet firms under fire
Many Internet firms have found themselves facing criticism no matter what they do. If they decline to release the information, they are labeled villains by people supporting the families. If they give it up, they are chastised for violating their own privacy statements.

Complicating such disputes is the very nature of e-mail, which many consider to be more personal and informal than regular letters; some even use it to correspond anonymously, to hide aspects of their lives that they may not want revealed to others.

"The difficulty is that there's no clear morally right or wrong," said Michael Froomkin, a professor of Internet law at the University of Miami.

Official policy varies from company to company. Many of the larger e-mail and Web site providers, such as America Online, MSN Hotmail, Google's Gmail and EarthLink, allow for the transfer of accounts upon death with proper documentation, but plenty of others do not. Yahoo, for instance, over the past few weeks has found itself under fire for refusing to allow a Michigan father, John Ellsworth, whose son died in Iraq in November, to access his son's e-mail.

Mary Osako, a spokeswoman for Yahoo Inc. in Sunnyvale, Calif., which manages about 40 million accounts, said that "our hearts go out to the Ellsworths and any family that suffers from a tremendous loss such as this." But, she added, "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."

What a company can and cannot do when it comes to the release of digital information often comes down to the language of the "terms of service" agreement it has with customers. Some firms explicitly state that they will not share information while others do not address the issue. The fact that Internet accounts are by their nature contracts raises questions about whether they can be owned.

"We might wish that our Web-based e-mail accounts were like our books and diaries, but they certainly aren't for most legal purposes," said Cindy Cohn, an attorney with the Electronic Frontier Foundation, a think tank in San Francisco.

An array of personal material
E-mail accounts can hold an array of personal material, from banking and e-commerce records to notes passed among friends and family, providing a unique window into someone's life. Online journals, known as blogs, and personal Web sites also often offer intimate portraits of their authors, and not all of the material is necessarily viewable to the public.

For some family members of military officers killed in Iraq, retrieving these digital relics has become an important part of mourning their loved ones.

Take Karl Linn's Web page. Linn, who was buried yesterday, was a small guy (when he first went into basic training his commanders were so worried about his 5-foot, 6-inch, 125-pound frame that they put him on double rations) with big ideas (he had a full-tuition scholarship to Virginia Commonwealth University, where he was in his second year as a mechanical engineering major). He was always the tinkerer, and his site, http://www.karl.linn.net/ reflected that.

In a text message on the main page, he apologized for the "improvised" look. "Below you will find what I have to share in the way of news from the front or whatever's on my mind."

Mostly, he used the page to post pictures. One showed the view down the Euphrates River from 10 stories up on the Haditha Dam where his unit was stationed. Another showed him sitting in a Humvee with full battle gear as he prepared to go on patrol.

His father, Richard Linn, 51, who is in software sales, said his son told him he had been working on another Web site at the time of his death, and Richard Linn hoped some of the information is still in the account. He believes his son may have stored some sketches he was making about his designs and inventions related to small arms and robotics.

"I think computer accounts are part of personal effects and I have power of attorney. It wasn't like he didn't trust me to take care of his affairs, and I know what I should or shouldn't be reading," Richard Linn said.

Eric Boustani, legal counsel for Mailbank.com, which is based in Reno, Nev., declined to comment on individual customers but said that it is the company's policy to "support absolute privacy of our clients." He said the company is eager to help families download public information on the Web site but believes that by releasing non-public account information like a password or things that have not been published yet there's "as much potential for harm as there is for good in that situation."

A father's hope
The family of Army Spec. Michael J. Smith had no more luck getting access to his Web page.

The singer from Media, Pa., who dropped out of high school to join a local heavy metal band, had been recording his thoughts in a blog for three years when he arrived in Iraq last fall with the 2nd Infantry Division. He died Jan. 11 when his vehicle was hit by a rocket-propelled grenade, and his father has a pending request to get access to both the public and private portions of his son's online journal on LiveJournal.com, where the 24-year-old infantryman wrote poetry about his experiences on Iraq, his love of music and life in general.

In one of his last entries, dated Dec. 31, Smith noted that he had had close calls with three roadside bombs, been in eight firefights and had mortars lobbed in his direction more times than he could count.

As for Iraqis, he said, "the people seem nice, some of the time. i've had lunch with one family, and i've detained another."

When news of his death spread through the blogging community, more than 700 people posted messages thanking Smith, who went by the online alias "wolfmoon98," for sharing his insights and for his service to the country.

Smith's father, James H. Smith, 63, who works for an electronics retailer, hasn't read the blog because he said it would be too painful at this time, but he's hoping to take possession of the postings for later.

"Maybe not right away but someday I'd like a chance to read what he had to say," he said.

LiveJournal community site supervisor Jesse Proulx said the company's policy is "to never transfer an account between individuals, regardless of the situation," but that it does offer families of deceased customers other options. The next of kin could request that the account be deleted or preserved to serve as a memorial where people can post their condolences and tributes.

"It's the most ideal solution for all involved -- our liability, the user's privacy, and the next of kin's wishes," Proulx said.

Meanwhile, the family of Marine Lance Cpl. Justin M. Ellsworth, 20, who died on Nov. 13 in Iraq in the restive city of Fallujah, is continuing to fight Yahoo over its refusal to give them access to the Mount Pleasant, Mich., man's account. His father said he promised his son he'd make a scrapbook of e-mails sent to him for future generations, a scrapbook that would be incomplete without all the e-mails that Yahoo is holding.

The family hired a lawyer, who is talking to Yahoo about possible alternatives -- but time is running out. According to Yahoo's terms of service, the company deactivates accounts after 120 days if they haven't been used. If the issue isn't resolved by mid-March or sooner, the e-mails could disappear forever.

Staff researchers Julie Tate and Richard S. Drezen contributed to this report.

Last modified date and time: 02/03/2005 19:15