TELECOM Digest OnLine - Sorted: Re: Who Gets to See the E-mail of the Deceased?

Re: Who Gets to See the E-mail of the Deceased?
6 May 2005 14:03:22 -0700

Justin Time wrote:

> The issue that needs to be resolved is if the ownership of the data,
> residing on the company's (in this particular case - Yahoo!) belongs to
> the sender or is it the property of the equipment provider?

Seems to me it is clear the email is the property of whomever is
paying the bill for email service. In the case of a worker, it is his
employer. In the case of someone on their own, it is that person.

Keep in mind ISPs have denied any responsibility for illegal activity
transmitted over their systems -- if you download illegal stuff, you're
in trouble, not your ISP. Accordingly, the ISP has no property
interest in transmissions.

Actually, this particular issue seems to be more of 'privacy'. But as
mentioned, this is by no means a new issue. Once you're dead (or
incapcitated) your affairs revert to legally designated people. As
mentioned, the discovery of old love letters has had devastating

Indeed, our nation's history was directly affected by such a case.
FDR had an affair with a woman, and later on Eleanor discovered the
old love letters. Their relationship remained strained forever more
and more of a business partnership than a marriage.

Note that the US Post Office will deliver mail addressed to a decedent
to an executor unless officially notified otherwise by the executor.
Mail is not automatically returned unless there is no one to accept
it. If there is held mail (ie for a signature), the executor or POA
is authorized to sign and receive it.

> If I am _renting_ the use of the computer then the computers output
> should belong to me.

As I mentioned, Yahoo is not liable if you use their facilities for
illegal stuff, thus they can't claim any interest in your mailings.

The area of law is not "property ownership" but rather IIRC
"bailments" where someone else is entrusted to hold your property,
such as a safe deposit box at a bank. When you die, your executor has
the right to open your safe deposit to inventory the contents
(sometimes the state will order this done to get their inheritance tax
cut) and then distribute or sell the contents per your will.

Bailment law has been around forever and there are numerous case
histories. Undoubtedly something close to today's issue can be found.

> If I am employed on the farm and work with your tools, then I
> suppose the crops are yours also. But not if the machinery, etc is
> under my exclusive control for some period of time. PAT]

The crops would belong to the property owner even if you used your own
tools to harvest them. Basically it would depend on the agreement you
had with the farmer for your compensation for work and equipment.

Now Congress or the states could, if they chose, pass specific laws
and exemptions from general practice for electronic communications.
But until they do so, existing precedents apply.

IMHO the email provider showed disrespect to the decedent's family for
failing to provide with what was clearly lawfully theirs. From the
point of view of the family, I'd be pretty annoyed.

Again, if you have stuff you don't want others to see, don't use
email. I just got burned with that--someone who promised me clearly
they wouldn't forward my email went ahead and did so anyway ("oh,
sorry, I forgot".) No great harm done since I was careful what I said
originally, but it still proves the point.


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