Remember this item? Michell Malkin reports on new developments. Like her, though for different reasons set out in my original post, I’m lukewarm about this move.
UPDATE TO THE UPDATE: Deeper treatment of this issue, and specifically the Justin Ellsworth case, continues apace. Here’s one piece in IP Law & Business (the article is not available on line for free yet) by Mark D. Rasch, formerly headed the Department’s efforts to investigate and prosecute computer and high-technology crime. He recommends the creation of an ‘”Internet Living Will” designating who can have access to your electronic assets in the event of death or incapacitation, and the scope of their authority to act on your behalf.”
Also, Jonathan Bick, a lawyer in New Jersey who’s an adjunct professor at Rutgers and Pace law schools, writes in the New Jersey Law Journal, available at Law.com (registration required here, too) that there’s an analytical article by . He agrees with the argument of my interlocutor Paul Gowder in the comments to my original post (above) that this stuff ought not to stay private: “[D]efending nondisclosure of information after a person has passed away on the basis of privacy would present significant legal difficulties. A typical result was found by the district court in New Era Publications Int’l v. Henry Holt & Co., 695 F. Supp. 1493 (S.D.N.Y. 1988), aff’d, 873 F.2d 576 (2d Cir. 1989), when it dismissed a privacy argument by noting that the author of the copyrighted work was dead, thus eliminating his privacy interests. This would also be the likely outcome should a privacy argument be present in the Yahoo! matter.”
I think it’s the wrong decision. Expectations, expectations, expectations!
Originally posted 2005-03-01 13:29:00. Republished by Blog Post Promoter
Hmm… I tend to think that the privacy right, rather than the e-mail, ought to die with the person in cases like this.
There’s some tangentially related precedent for this: I think most states hold that a dead person’s personal representative can’t maintain a suit for defamation. Purely personal rights would seem to die with the person (as opposed to economic rights).
It also seems to be a little cruel to the family who will not have his last words.
Sometimes the truth can be more cruel than not knowing, don’t you think, Paul?
Sure, but that’s the family’s choice to make.
For that matter, the family is the most likely group of people to know if the deceased would have wanted the e-mail revealed.
If he wanted them to have access, he could have given them the password or made it available for them in the event of his death, right?
Sure, except that young gung-ho soldier types aren’t known to think of such things.
And that point could easily be turned around. If he didn’t want them to have access, he could have hit the delete button.
In fact, that flipped version makes more sense because families and close friends have had access to the papers of the deceased throughout history. It’s part of our social tradition. (How many buried manuscripts have been published after the author died?) The “default rule” should be the one which is in accordance with that tradition, unless the deceased expressed his intent otherwise.
He didn’t delete them because he DIDN’T KNOW HE WAS GOING TO DIE before he could do so himself. Whereas he can tell a family member or his executor, “When I go, here’s the password.”
I disagree about what the expectations really are here.
RDC
Well, he didn’t tell a family member etc. because he didn’t know he was gonna die.
Plus, soldiers ought to be aware of the possiblity of death.
I think we’re proving my point though: we can speculate rampantly about what he would have done if he intended X or Y… or we can let the family, who knew him best, make the decision.