TELECOM Digest OnLine - Sorted: Dead Marine's E-Mail Raises Legal Issues

Dead Marine's E-Mail Raises Legal Issues

Lisa Minter (
22 Apr 2005 12:37:42 -0700

By ADRIENNE SCHWISOW, Associated Press Writer

Yahoo Inc. may have resolved its dispute with a family over accessing
the e-mail account of a Marine killed in Iraq, but legal experts say
the fight may continue for a long time. .

John Ellsworth sought his son's e-mails after Lance Cpl. Justin
Ellsworth was killed Nov. 13 while inspecting a bomb in Iraq. But the
father didn't know his son's password, and Yahoo said it couldn't
break its confidentiality agreement with the Marine.

The family was granted access this week after an Oakland County
probate judge ordered Yahoo to do so. Yahoo had said all along that it
would comply with any such order.

Henry H. Perritt Jr., a professor and expert in cyberlaw at the
Chicago-Kent College of Law, said he knows of no other case where
battles over a dead person's e-mail have gone to court, but he expects
to see more, especially as long as our troops are getting killed
almost daily in Iraq.

"I think that as it is now, the service providers for the most part
just hand it over when they've established death and that someone is
the administrator of the estate," Perritt said Thursday. "But they are
really just beginning to think about this."

Other e-mail service providers, including America Online Inc.,
EarthLink Inc., and Microsoft Corp., which runs Hotmail, have
provisions for transferring accounts upon proof of death and identity
as next of kin. AOL says it gets dozens of such requests a day.

Yahoo's policy, however, states that accounts terminate at death.

Yahoo said it has complied with court orders in a handful of similar
situations, but has not changed its policies on privacy.

"We are pleased that the court has issued an order resolving this
matter, satisfying Mr. Ellsworth's request as representative of his
son's estate, and allowing Yahoo to continue to uphold our privacy
commitment to our users," spokeswoman Mary Osako said.

John Ellsworth had argued that his son would have wanted him to have
the account. The Marine told his dad that kind e-mails kept him going,
and his family wanted to make a scrapbook out of them.

His father now is wading through tons of spam from mortgage companies
and online dating services; porn and scams from people who single out
our troops, taking advantage of their lonely situation.

Here and there among the volumes of spam, scams and porn, he finds an
encouraging letter from people his son didn't even know; people who
write thoughtful, helpful letters to the troops to show them

"Those few decent letters are a great comfort," Ellsworth told Detroit
radio station WJR.

The Sunnydale, Calif., company's willingness to work with the
family isn't surprising considering that many Internet service
providers still are trying to figure out the best way to handle such
situations, said Julie E. Cohen, a professor of cyberlaw and
intellectual property at Georgetown University Law Center.

Though e-mails are akin to medical and financial records that
executors routinely access to administer the estates of the deceased,
Cohen said, service providers may have been slower to catch up in
realizing the importance of making e-mails available.

Perritt agreed with the family's contention that accessing e-mail is
similar to accessing a safe deposit box.

"I don't see any reason why e-mail should be different from any other
kind of property," he said. "But it's a new twist on an old issue,
particularly with the huge number of troops being sent back home

Copyright 2005 The Associated Press.

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