Actually responding to my post on the topic, Fools’ Blog: After Death E-Privacy [Link is now dead, sorry! — RDC]:
With regard to the Marine’s privacy, does it apply now that he has passed? Many courts have held that privilege (legal, medical, confessional) does not survive death. Why should the privacy of an e-mail account? Why is the e-mail account afforded any greater status than the Marine’s U.S. Postal Service mail, which presumably his survivors are entitled (if not obligated) to check?
Great question. I guess to make my point, I have to enunciate a new rule. I am comfortable doing so, because this is all judge-made law anyway. There is plenty of good reason to ask, as Fool says later in his post, whether there is an expectation of great privacy here, and I think the answer is in the affirmative. It’s a brave new world. Because, on the Internet, no one knows you’re a dog, and by gosh that is something new and different, and people’s expectations are that it will be treated that way.
The analogy to the found letters (and the very disturbing Seinfeld episode Fool talks about) is a fair one. I will say this: When physical correspondence is kept, regardless of where they are hidden, the person keeping them knows there is a finite possibility that they will someday be found — and not only someday but today. You can even make the psychological argument that they want them to be found (if you want to). But people who use email rationally expect that if they do not reveal their passwords to anyone that their email will remain confidential. It’s a different medium, a different mindset. And yes, expectations are critical to this examination.
If so, though, an interesting question arises if you posit a case where the email owner would, retrospectively, want his heirs to have access to the email. Suppose there’s an email in which a person to whom the email owner lent money to finally admits he owes it. Or where the email owner discusses with a doctor friend his recent discovery, which he has not yet discussed with others, that he has an inheritable disease. These examples, however, are addressed by my proposed solution: a qualified right to access. Given, of course, that the does not, in these examples, know what he is looking for, more discretion is admittedly placed on the third person who, I have posited, is to be given permission to poke his nose into the email of the deceased. Undoubtedly this requires the imposition of a fiduciary duty on that person, as well.
Complicated, yes. Perhaps I will amend my estate plan to instruct my heirs that this is the procedure to follow, and name an email exector. But absent that, and these fairly far-out scenarios, I am inclined to put the burden on the heirs to make the showing as to why a deceased person’s email should be their business.
And if the first judge to get this one disagrees with me, I wouldn’t be surprised to find a legislature weighing in on my side — and the California legislature is just the bunch to do it.