I Read Dead Peoples’ Email: UPDATE

Remember this item?  I wrote, regarding a family’s request for access to a serviceman’s email account after his death, as follows:

I say that absent a specific compelling reason to get the email information — i.e., the location of his will or the buried treasure or something like that — it should die with the man. And, considering that, I would also require that the information ultimately revealed be narrowly-tailored as well. The court in camera, or a special master, or another neutral person should fetch the relevant information and then Yahoo! should blow taps on the account. A hero is entitled to die with his privacy and his secrets intact.

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) by Mark D. Rasch, who 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 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 outcome. Expectations, expectations, expectations!

UPDATE ON REPOSTING IN 2009: Recently this item about “what happens to your email when you’re dead?” got a lot of play over Twitter.  This has been dealt with, in terms of what email providers do, elsewhere, too (and in a funny, macabre way here), but the issues I raised in this post — i.e., what should happen to your emails when you’re dead? — are not really being taken to heart by lawyers, policymakers or too many other people either.  Thinking about this more, I realized that I wrote so many posts on this topic, the last of which is here, that it should be part of my backward looking categorization project, and made up a whole category for these “emails of the dead” posts.  Enjoy them… while you can.

Originally posted 2014-12-03 12:54:55. Republished by Blog Post Promoter