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?
9 May 2005 20:45:18 -0700

Justin Time wrote:

> The issue here is the intellectual property. The output of the
> computer belongs to you. You are free to take it with you and do with
> it as your heart desires. The other side of the coin is the data you
> leave on the rented computer. It does not belong to you. It is the
> property of the machine owner. All those temporary files Microsoft
> creates and stashes where only the programmer knows are not yours once
> you leave the machine and return it to its owner.

> A case in point is the example of rental machines at Kinko's. Some of
> us may remember a few years ago the problem of some people who rented
> machines at Kinko's were finding confidential and personal information
> that had been left by prior users. There are also instances where
> these "public" machines have been siezed with a warrant for evidence
> of illegal activities. The entire point being the owner of the
> machine has the ownership of your intellectual property -- in this
> case Yahoo! and the email files -- because you left them on their
> machine. If you had taken them with you, or deleted them, then the
> owner of the machine would not have your intellectual property.

I do not believe the above is correct. Again, the idea of leaving
property in the care of another is nothing new, it is covered under
the section of law known as bailments. That law defines the duties of
holders of property relative to costs and abandonment of property.

The owner of a machine never had the ownership of your personal
property when you're using his machine or even if you abandon it on
his machine.

I want to point out there is no such thing as "finders keepers". If
you lose something, you have not lost ownership in it, and someone
finding it does not gain ownership in it. For example, if the doors
of an armoured truck break open and the money flies out (which has
happened several times), it is theft to keep any such money you find
and people have gone to jail taking such money. One person who found
a large sum of money in the street and kept it went to jail because he
failed to make a reasonable effort -- such as reporting the find to the
police. The police had a report of the missing money and would've
matched it to the owner.

As to intellectual property, this isn't anything new either. Say I go
to a library and write up notes on paper, then leave the papers in a
book: Those papers remain my property.

JT mentioned internal temporary files -- qsuch things probably never
were a person's property in the first place because of their
temporary nature. However files I create would be my property.

Now if the computer use was intended to be temporary, the owner would
have no obligation to maintain files after I've gone -- they could run
an automatic sweep. But if someone comes in asking for a file and it
happens to be still available on the computer, they are entitled to
get their file back.

I do not believe the owner of any machine ever has ownership of your
property that you're running on it, any more than the landlord of your
apt has any ownership interests in your furniture kept in an apt
you're renting from him.

If I leave an expensive coat at a restaurant, that coat still belongs
to me -- the restaurant owner cannot simply give it away and must hold
it for a period of time for me to return to claim. Bailment law
defines what the hold period would be and the proper care the owner
must exercise while holding the coat. Obviously I can't show up five
years later and claim it. If I checked the coat in their checkroom,
they shouldn't store it next to the stove where grease will splatter
on it, but on the other hand, they don't need to store it in a climate
controlled vault either.

As to seizing _anything_ for a criminal investigation, property
ownership is irrlevent except to state who receives the search
warrant. If the cops think there's evidence in a restaurant to catch
a criminal who frequents that restaurant, they will search the
restaurant and its fixtures.

As to finding confidential information, it is theft to use such
information, in some cases a very serious felony. As to a computer
rental place, it may be necessary for the store to automatically clean
the file space (as my public library does between users) or alert
customers to do so. A public service has a duty to take _reasonable_
precautions to protect its customers, just like the restaurant must
make a reasonable effort to protect an expensive overcoat left behind,
and just as a checkroom won't hang up checked coats in the back alley
in the rain. Generally, when such reasonable precautions are taken
there is no further liability. Some rental agreements expressly limit
or even deny liability -- you see signs in restaurants "not responsible
for lost or stolen items".

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