From The Detroit News: Tuesday, December 21, 2004


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Elizabeth Conley / The Detroit News

John Ellsworth, with his wife, Debbie, checked his e-mail every hour after his son, Justin, was sent to Iraq in September.

Family fights to see soldier's last words

A fallen Wixom Marine's e-mail messages from Iraq are held up by Yahoo! over a privacy issue.

By Jennifer Chambers / The Detroit News

      10-16-04
      Hello all,
      I just wanted to send an e-mail saying that i am doing well here, and i believe that we are making a big difference but what makes it worth it is hearing from all of you at home and hearing that there are those out there that may not necessarily support our president you support our troops, and that makes us push on and keeps us motivated...all In all i just wanted to say i am doing well and i am truly grateful for your support.
      Thank You and God Bless
      Lcpl Ellsworth, Justin m.
      P.S. GO LIONS!!!!!!!

WIXOM -- Justin M. Ellsworth's family clung to every word that slipped from the 20-year-old Marine's fingertips into e-mails from the battlefront in Iraq.

The messages were brief and optimistic, eager for news from home and written to reassure loved ones that Justin was alive and well.

Ellsworth's father John read each one again and again. John Ellsworth last spoke on the telephone to his son Nov. 3, 10 days before Justin was killed by a roadside bomb during a foot patrol with other Marines in Al Anbar province.

Justin's body has been returned home to his family, but those e-mails -- once a lifeline between the Marine and the dozens of loved ones he left behind -- are being held hostage in an unusual cyberspace legal limbo that has pitted the Oakland County family against Internet giant Yahoo!

The case raises significant legal questions for which there appear to be no clear answers.

"I want to be able to remember him in his words. I know he thought he was doing what he needed to do. I want to have that for the future," John said. "It's the last thing I have of my son."

It's a new problem in the modern war, one in which families less frequently rely on words written on paper and instead, rely on e-mail. The battle for e-mails of people who have died is a problem that could be faced by anyone seeking to retrace the final words of a loved one.

Justin's father is pleading with the company to allow him access to his son's e-mail account to fulfill the family's wish of reading, seeing and knowing the young man's last words, pictures and thoughts from the front lines in Iraq.

The family wants the complete e-mail file that Justin maintained, including notes to and from others.

But without the account's password, which only Justin and Yahoo! know, the family's request has been repeatedly denied. In fact, Yahoo! policy calls for erasing the entire account if, after 90 days, there is no activity.

John Ellsworth, a police sergeant with Wolverine Lake, is devastated at the prospect of his son's memories -- what essentially could be his son's last written words -- being obliterated forever.

Legal observers are drawing different conclusions on how the case will work out. Some say the e-mail is part of Justin's personal property and would be the property now of his father who has power of attorney over his son's estate, although such action would likely require a court order.

Others say Yahoo! has a contractual obligation to Justin and all e-mail subscribers to protect their confidentiality and privacy -- dead or alive.

"I'm not sure the family in this case has any more rights to a private e-mail record once someone is dead than they would have had when he was alive," said Bill McWhirter, who teaches a media ethics course at Michigan State University. "These are private accounts. I'm not sure individuals in their contract would welcome any member of his family going through his e-mails if he were alive."

Yahoo! said all e-mail account users agree to the following contract when they sign up for service: any rights to a member's Yahoo! ID or contents within an account terminate upon death. Once a death certificate is received, the contents of the account are permanently erased.

"While we sympathize with any grieving family, Yahoo! accounts and any contents therein are nontransferable, including when the account holder has passes on..." Karen Mahon, Yahoo! spokeswoman said.

      10-16-04
      Somewhere In Iraq --
      Hello all! today is oct. 16 and there has been alot going on as i am sure you all have seen on the news i just wanted to let you all know that i am still alive and well! and missing you all very much. i love looking at every ones pictures! i wish i could be there for the holidays. i remember the holloween hay rides where always so much fun. i bet the wagon will be quite full if you all do it this year i cant wait to see the pictures! well i should go i love you all and i cant wait to see you again! i will try to send michelle and yann some pictures of my self do what i do over here. i hope to see you all soon.
      Love Justin

Keeping in touch with his family was important to Justin Ellsworth. When the strong, tall, blond young man who loved country music got the chance, he called home to talk to his father, stepmother Debbie and 10-year-old sister Jessie, who live in Wixom."He would get a ton of e-mails. I made group addresses for him, and some had 40 people in them," John said.

As word spread among family and friends about Justin's e-mails from Iraq, more and more people -- some high school friends, others complete strangers -- began to e-mail Justin in Iraq. The family believes Justin could have hundreds of received and sent e-mails.John Ellsworth checked his e-mail every hour once Justin was sent to Iraq in September. Justin, who trained to be a demolition explosives expert, was quickly pulled from his support battalion and sent out with a reconnaissance unit whose job was to pull innocent civilians from homes in Fallujah before U.S. forces bombed the city.

"For a 20-year-old, he was doing some really serious work," John said. "He said, 'Dad, I'm saving lives every day. I can see the faces of the lives I'm saving every day. I'm proud of the work I'm doing here.' He could only tell me so much."

Justin received e-mails from across the globe from family, friends and well-wishers hungry for information on the young Marine who opted for the military instead of college. John said Justin agreed to forward the hundreds of e-mails he had received and the dozens he had written back to his father so he could make copies of all the dispatches and put them into a scrapbook for when Justin returned home.

"He had tons of people he was writing. He was going to forward on all these e-mails to keep as a keepsake and make as a scrapbook. He was putting together a picture slide show for the next recon unit. When things calmed down, we were going to get together and go over it all," John said.

      9-18-04
      Hey dad hope all is well you you and the girls, we should be moveing into our new rooms tonight i cant wait. i wish i could tellyou what is going on but all i can say is me and the guys are having fun I'm not with the platoon anymore well i am but i'm not you know we are working with the other guys right now and everyone is jelous!...i should get going oh by the way i am saveing all of the e-mails that i get from everyon. They really brighten my day i love you and i will talk to you soon!
      LOVEYOUALL LOTS!!!
      JUSTIN

Larry Dubin, a law professor at the University of Detroit Mercy, said he is unaware of any clear law on the issue of whether e-mails are private property and whether survivors have a legal right to such papers. "I think it is important for any Internet provider to assure its customers that the e-mail communications will be deemed confidential and not be disclosed to anyone who requests them. I think they have an interest in wanting to comply with whatever they agree to do in a contract," Dubin said.

On the other hand, it may not be a complicated matter at all.

"Yahoo! is worried about liability in releasing the e-mails. Therefore, if there is legal basis for the disclosure, Yahoo! may consent to doing that without any further dispute," he said.

John said he and Justin never talked about Justin's e-mail account password. John has tried to guess at his son's secret code, using Justin's childhood nickname -- Boomer -- to girlfriends' names, family nicknames, anything associated with his son. Nothing has worked.

"We just can't get it. I'm frustrated with it," John said.John said repeated calls turned into rude confrontations when Yahoo! customer service workers maintained a wall based on the company's policy. At one point, John says, he was told by a Yahoo! supervisor: You might as well stop talking because I'm not going to do it.

Frank McNelis, a former Air Force officer who practices law in Mount Clemens, said Yahoo! could make an exception if it wanted to in this case and believes the family could legally challenge the company if they can show the e-mails are part of Justin's private property.

"Who are they kidding? I think it's outrageous. To begin with, these communications came from a war zone. He took the account out for that reason, as many men do that for that reason," McNelis said.

"The e-mail today is the replacement for the mail call. It means everything to the troops. Today (you) can almost do it instantaneously. It means everything to the fellas out there. This stuff, it's from the heart. They are his history."

      10-31-04
      Iraq --
      Hello Everyone! Happy Halloween!!!! It is so nice to be able to see pictures of all of you! i am hopeing to be able to send my dad some more pictures of me so that they can be put up on the web site....I am haveing a good time with the guys that i am working with over here we are enjoying what we are doing(you have to make it a good time or you will go crazy)...
      Love Justin

Justin's family has not given up trying to solve the mystery of the e-mail password.

John and Debbie try new words several times a day, every day. Debbie, who was hospitalized last week due to stress, went online from her hospital bed and attempted to find the magic password. In the month of November, Justin had limited access to the Internet. His stepmother strongly suspects Justin was stockpiling e-mails and was waiting to send them out when the military gave the troops access to the Internet again.

"He had his computer with him (in Iraq). He could have been writing messages and saving them and sending them later," she said.

Sitting at his dining room table surrounded by framed photos of his son -- one in uniform, another with Justin posing with a cowboy hat and fat cigar -- John Ellsworth says his son's e-mails are the one thing he hasn't been able to get his hands on.

While they may not provide any answers, it will satisfy his needs and those of his family for something tangible from their son, who is now buried in a cemetery in Lansing.

Less than 24 hours after learning of his son's death, John Ellsworth posted this e-mail on Justin's message board -- for Justin and everyone who loved the always smiling Marine:

      11-14-04
      Home --
      I love you Buddy, Rest in Peace.
      Daddy


You can reach Jennifer Chambers at (248) 647-7402 or jchambers@detnews.com.

 

Elizabeth Conley / The Detroit News
 
 

Justin's stepmom Debbie, who was hospitalized last week due to stress, went online from her hospital bed to guess the password to Justin's e-mail account.

 

Last modified date and time: 01/17/2005 8:46