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Dispute Continues Over Posthumous Yahoo! Mail 390

XPisthenewNT points out BBC coverage of the earlier-mentioned dispute between Yahoo! and the family of Justin Ellsworth. An excerpt: "Police sergeant John Ellsworth has sparked a privacy debate in the U.S. that has prompted many to reconsider who can access their e-mail. Mr. Ellsworth is locked in a legal fight with Yahoo! after his son, L/Cpl Justin Ellsworth, a U.S. marine serving in Falluja, was killed by a roadside bomb."
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Dispute Continues Over Posthumous Yahoo! Mail

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  • by glrotate ( 300695 ) on Wednesday January 12, 2005 @11:16AM (#11335057) Homepage
    of that comedian joking about not wanting to die because of the dread of his parents finding the "porn wing" of his apartment.
  • Value (Score:5, Interesting)

    by Robert Hayden ( 58313 ) on Wednesday January 12, 2005 @11:16AM (#11335058) Homepage
    Since the messages may be valuable (although probably are not), shouldn't it be a simple matter to claim they are part of the estate and get a TRO and be done with it?

    After all, the copyright is held by the decedant, so wouldn't that material value pass to his heirs?
    • Re:Value (Score:3, Insightful)

      by mmkkbb ( 816035 )
      it might not be that simple if yahoo claims they are providing a service and all your message are belong to them
      • >it might not be that simple if yahoo claims they
        >are providing a service and all your message are
        >belong to them

        That would require them to demand the copyright being transfered to them (and the sender losing it) for everything you send to their mailboxes (since it seems to deal with mail sent TO the yahoo mailbox, not from it). That hardly seems likely or even reasonable.
        • Re:Value (Score:3, Interesting)

          by geoffspear ( 692508 )
          No, it wouldn't.

          That's like claiming a publisher needs to provide an author with copies of his book because he owns the copyright.

          They would be able to sue Yahoo! if they tried to publish or otherwise distribute the messages, but copyright law doesn't require them to provide copies of them. Their contract with their users might, but I doubt it, unless it was written by a really bad lawyer. Having clause like that would open them up to massive lawsuits if they had a catastrophic failure of their servers

        • Re:Value (Score:3, Insightful)

          by GryMor ( 88799 )
          Copyright is irelevent. Hypothetical, I run a mail service, where (as specified in the agreement signed when opening the, non transferrable, account), you give me a letter and I as a service, make a copies of the letter and send it to people you specify. Additionally, as another service, I allow you to examine, and make copies of, the letters you have given me. Now, if you die, your estate gets the copyrights to those letters, but the letters are mine, you gave them to me, copyright limits what I can do wit
    • This is not a copyright issue.
      • It is a copyright issue, or could be, EXCEPT the yahoo TOS states that you terminate your copyright to the emails on your death. OTHERWISE the estate would retain ownership of the emails and could rightly demand them (all this from reading the fine article)
        • Doh, you are correct! To me this raises the question - if Yahoo does not infringe on the copyright by copying anything, but simply deletes the account, have they even violated any rights, even absent a "death" clause? I would say, no.
          • I don't think they violate the copyright by deleting the emails, but I do think they could be compelled to release the material to the estate without the clause in their TOS.

            I think the father needs to get an injunction (I don't know if he has) to prevent deletion, otherwise I would expect Yahoo to burn everything within 30 days.
        • Re:Value (Score:3, Interesting)

          by javatips ( 66293 )
          The thing is, AFAIK, that your cannot terminate ones copyright by contract. One can transfer his copyright to some other entity, but copyright cannot be terminated.

          So this clause of the contract would be invalid. I'm pretty sure that the father will win in court if it ever goes there.

          The only problem that he may have is probably within Yahoo right to not let anyone else access the account. But should not prevent Yahoo to provide the content of the account.

          It is also possible that Yahoo will only be force
        • Re:Value (Score:4, Insightful)

          by 1u3hr ( 530656 ) on Wednesday January 12, 2005 @01:22PM (#11336896)
          OTHERWISE the estate would retain ownership of the emails and could rightly demand them (all this from reading the fine article)

          Yes, TFA says that, but it's wrong. Being the owner of the copyright of something DOES NOT give you the right to demand someone who legally has a copy (as Yahoo obviously does) to hand it over to you, even if as here that is the only copy left. Copyright gives the owner the right to prevent someone else publishing; what's being talked about here is almost the opposite, forcing someone to.

      • It is a copyright issue simply because copyrights are nothing more than the original expression of an idea (which is not necessarily original) fixed in a tangible medium. Copyrights aren't specific to art or science in any way though they are certainly more valuable in these fields. E-mail messages are most certainly expressions of an idea in a tangible medium, therefore the owner, or their surviving family, should be given the e-mails as Yahoo has little legal claim to them. The question the courts will
        • Re:Value (Score:4, Insightful)

          by thpr ( 786837 ) on Wednesday January 12, 2005 @01:32PM (#11337050)
          E-mail messages are most certainly expressions of an idea in a tangible medium, therefore the owner, or their surviving family, should be given the e-mails as Yahoo has little legal claim to them

          NO, NO, NO. You're confusing the issue. If I run into an author (say Stephen King, for example) and I'm carrying a copy of one of his books, can he demand the book from me because he owns the copyright? Absolutely NOT. I own the physical book, he owns the copyright to the material. I can't publish it, present it, make derivatives, or anything within the control of copyright law, but he DOESN'T OWN THE COPY and CAN'T DEMAND THE COPY from me. Anything less than a clear distinction between those two ideas starts to really mess with the doctrine of first sale and other issues which are fundamental to operating a reasonably private, capatilistic society.

          The result is that Yahoo! cannot do anything related to the exclusive control provided in copyright (such as releasing the e-mails) without the permission of the copyright holder. However, deletion or destruction of a copy - especially when explicitly declared in the terms of service - has NOTHING WHAT-SO-EVER to do with copyright law, because copyright law doesn't provide any limit on destruction of a copy.

          Yahoo! has NOT claimed ownership of the resulting expressions in the text. It probably does claim ownership of the bits on its hard drives (since it DOES own the drives), and the right to destroy those bits in relation to the terms of service. Nothing in copyright law can prevent them from deleting the material if they so choose.

  • my guess (Score:3, Informative)

    by mmkkbb ( 816035 ) on Wednesday January 12, 2005 @11:16AM (#11335066) Homepage Journal
    as a non-lawyer and a non-law student:

    the family will need to prove that the yahoo mail account is property, and as such becomes part of your estate when you die, so you can will it to someone. what happens to property that's not in your will when you die?

    i think yahoo is just covering up that they already dleted the account, honestly.
    • I don't think so. Suppose you demonstrate that an email account is property, what would happen in a divorce? Can one spouse claim family ownership of it, and demand access to the account even if the other spouse had never explicitly shared the password of the account? Suppose alternately that the email account is property, and the email-provider goes out of business, taking the account down with it, can you sue for damages for loss of property?
      • I don't see how those are counterexamples of anything. Can of worms, sure.
        • I think they are great counter-examples. By making the e-mail's the property of the person who signed up for the account if the e-mail service provider goes out of business, suffers a crash, etc then the email owner can sue for damages of lost data.

          Also, if it is property - then yes it can be fought over in cases of divorce.
          • My computer was under warranty when the hard drive died. Can I sue XYZ company for my lost data?

            and the beat goes on.....and on...

            • depends on your warranty, the terms of service, and the reasonable belief that the hard drive will remain working without ever dying. A person has a reasonable belief that Yahoo has multiple servers, that are redundant and backed up - so if one, even two die there is still a backup.
              Your example is very different from mine.
          • Hense the problem with "automatic copyright" This case shows exactly why this is a bad idea. I'm not saying copyright should be hard to obtain, simply saying "copyright joe sixpack 2005" somewhere in a given package should be sufficient to show intent to treat information as a product.

            People should know when you your words (etc) are not just communication but also a product with a price tag. Anything else is morally shady. Perhaps dad knows his son would want him to make a million dollar book from his

      • > Can one spouse claim family ownership of it, and demand access to the account even if the other spouse had never explicitly shared the password of the account?

        That should depend on the terms of the marriage, but I do not see a problem as such, rather, I do see reason to not use your 'private' email accounts for cheating. Its not like the government can't read whats in there anyway if they want to, you trust them, why not the person you previously promissed to share your life with? Oh, it went wrong? w
        • I was, admittedly, a little too brief. To expand why I think they're counter examples, remember what I was countering: I was countering the claim that this was a lie by yahoo to cover their having deleted the account already, so I was suggesting alternate (and seriously difficult) reasons why Yahoo may be resisting.

          More broadly, I think my arguments are reasons not to allow this. Frankly, if you want to protect access to your data, keep your passwords in your safety deposit box. Put them in your will.
    • i think yahoo is just covering up that they already dleted the account, honestly.

      Huh? Why would they do that? First of all why would they delete that particular account among the thousands of accounts on yahoo? If they deleted it because of the non-activity policy that some email providers have, why would they need to "cover it up"? It's in the TOS.
    • >i think yahoo is just covering up that they already dleted the account, honestly.

      well, i don't think they need to "cover up." if they had deleted his email account, it's not like they went and intentionally deleted it. it would be done automatically - inactive for N days, so delete. it's not like yahoo got malicious and decided "oh, this dude dies in a war, let's just erase his account since he's dead."

    • by raehl ( 609729 ) <raehl311@yahoo.GAUSScom minus math_god> on Wednesday January 12, 2005 @02:43PM (#11338065) Homepage
      The Yahoo account is an agreement between Yahoo and a person for limited access to Yahoo's storage system.

      The copyright in the emails authored by the deceased is owned by the deceased's estate. Yahoo happens to own media on which a copy of the emails is stored.

      The deceased has no right to access the copy of the material on Yahoo's media without Yahoo's permission. Yahoo gave the deceased permission to access the material on their media for a limited term, which ended with the deceased's death.

      Owning the copyright in a particular material does not give someone the right to look at copies of that material on other people's media. If it did, the RIAA could force you to let them listen to your CD's. If the record company has a huge fire and all their copies of their copywritten material burns to a crisp, they can't compel someone else with a copy of that material to give them access to it.

      In this case, the only thing the copyright ownership gives the estate the right to do is demand that Yahoo delete the copies of the email from their servers. And it CERTAINLY doesn't give them the right to look at emails in the account authored by other people which the estate does not have copyright ownership of.

      If the deceased's estate has the right to access the deceased's account because they own the copyrights in the email, than any publisher would be able to look at any copy of anything they publish, which is obviously not the case. If the deceased's estate has the right to access the deceased's account because of the agreement between the deceased and Yahoo, then clauses which terminate a contract at one of the party's deaths would have to be invalid, which is also not the case.

      No one has the right to access anyone else's property. It doesn't matter if the agreement between Yahoo and the deceased eliminated the "right" of the deceased's estate to access Yahoo's media - that right never existed in the first place. The estate has to prove that Yahoo agreed to give them that right, which they can not.
  • How about his will (Score:3, Informative)

    by antifoidulus ( 807088 ) on Wednesday January 12, 2005 @11:17AM (#11335081) Homepage Journal
    TFA doesn't mention anything about whether or not this young Marine had a will. I would imagine(please correct me if I am wrong) that the Armed Services would provide some type of legal services for will making for him. If he wanted people to read his mail, it should have been in a will......
    • The military does provide a form for the person to use. How detailed this is, I don't know; But I would assume that a young person might not be too interested in filling out a long document - especially if he doesn't have kids/wife - so it might be a simple one page document that says (more or less) "I leave all my stuff to my mom, dad, brother and sister", etc.
  • Common sense? (Score:3, Insightful)

    by KrancHammer ( 416371 ) <GunseMatt@hotma[ ]com ['il.' in gap]> on Wednesday January 12, 2005 @11:20AM (#11335117)
    IANAL.While I truly respect privacy rights, even after a person is dead, perhaps a little common sense (or adjustment to the appropriate laws) is in order. Why _not_ let the family of this person have access unless that person has a will or last testament that says otherwise? Why proceed from the other direction that assumes the deceased would not want his family to have access even though there is no documentation specifying that?
  • Not just email (Score:3, Informative)

    by wowbagger ( 69688 ) on Wednesday January 12, 2005 @11:20AM (#11335122) Homepage Journal
    Email is not the only thing that can have this happen - you can also have the same sort of problems with a bank safe deposit box.

    If you have a safe deposit box in your name only, and you die, until the courts approve of your estate's executor, nobody will be able to get to the contents of that box - so think twice about putting anything in a safe deposit box that would be needed by your survivors within a month or less of your demise.
    • Actually, there is a provision (in Ohio, at least) for one family member (usually the proposed executor) to go into the box specifically to look for a will and insurance policies. Those are the only items that may be removed. This is before court appointment of the executor.

      I went thrugh this a couple of years ago.

    • Re:Not just email (Score:4, Informative)

      by AviLazar ( 741826 ) on Wednesday January 12, 2005 @11:33AM (#11335299) Journal
      While in college I worked for three different banks - and each were under the same federal regulations (duh). A person brings a short notice (a brief one page showing that the person died - gotten at the county office) and the person proves they are responsible for the estate then they get access to the account. No court order needed. The only time this becomes an issue is when next of kin start fighting over the property - otherwise, it goes to next of kin. IF next of kin are fighting then the court provides an order to the bank to not allow anyone to access the box until further notice.
  • In the real world... (Score:3, Interesting)

    by AtariAmarok ( 451306 ) on Wednesday January 12, 2005 @11:22AM (#11335144)
    In the real world, what is done with your safe deposit box, or your post office box if you die and no-one can find the key? I really don't know the answer to this, but am wondering if the precedence/situation might apply here at all.

  • When a loved one dies senselessly, a natural human response is to lash out at the first target that makes themselves available.

    I feel very sorry for the parents.
  • Parents... (Score:3, Funny)

    by Sophrosyne ( 630428 ) on Wednesday January 12, 2005 @11:22AM (#11335152) Homepage
    It never ends, even after you're dead.
  • Perhaps we need an option added to e-mail accounts. Like a checkbox that says, "Check here if you wish to let __________ inherit this e-mail account when you end up dead." The blank line would be either another person's e-mail address to receive the password, or a real life name and address.
  • whose email account is it?

    was the account willed to anyone?

    is yahoo a private company? who signed the contract of terms of the usage when the account was created?

    unless there are credible, legal (i.e. non-sentimental) reasons that the email account needs to be accessed, i don't see the fuss.

    if the one who was killed meant emails to be a journal, he should have sent them out, not keep them in his account. sorry and sad to say, but he knew that there's a real danger of his life ending suddenly.

    if th

  • It seems to me that Yahoo! should update their user's agreement to deal with this problem. Basically, they should allow users to specify how they want next of kin issues dealt with. Some people may opt to allow relatives to access their mail after death, while others may prefer that they delete it all. There should be a way to specify this. I suppose you could do it now by simply spelling it out in your will.

    On the other hand though, if I have a box of old letters, I wouldn't expect any level of privacy wi
  • by drteknikal ( 67280 ) on Wednesday January 12, 2005 @11:31AM (#11335275) Homepage
    If you want people to have access to your accounts, you had better document the accounts, the passwords, and the access methods for them before you die.

    Why should my survivors get access to stuff in my virtual world after I die if I never gave them any rights to it while I was alive?

    I understand, or at least I think I understand rights of survivorship. I have sympathy for those who have lost a loved one, but I don't see how that makes any legal difference.

    So let's say that I'm involved in a bunch of stuff that I don't want my survivors to know about, and we automatically give them rights to my virtual stuff when I die. They find out what a bastard I am, and their memories of me are forever saddened.

    Here's the opposing question: If we start handing out access to online resources when the account holder dies, don't we also have to make everything include an option to delete upon the death of the account holder?
    • That's why you get a buddy to come over to your apartment after you die and clean out all the porn and drugs you don't want your mom to find when she comes to collect your belongings. ;)
  • the young soldier had spent much of his spare time e-mailing his folks back home through Yahoo! webmail. "He was keeping a journal of sorts to put together for future history," John Ellsworth told BBC News. "He wanted to make sure that his generation, as well as following generations, have actual words from somebody who was there." But Mr Ellsworth Snr was shocked when Yahoo! turned down a request to release his dead son's e-mails, on the basis of privacy.

    "The man is devastated at the prospect of his son'

  • Yahoo! will drag this one out till the account becomes inactive and...
  • remember folks inpostal mail we have the saem rules..

    Its illegaql for a non recipent to view unless recipent gives permission..

    and that is a standard bnoth in USA and Europe..

  • If I died I sure as hell would not want my family looking through all my email. Sounds like his family is just a bunch of assholes, especially since they already knew he was in a situation with a high danger and could have easily worked something out.
  • by mattkime ( 8466 ) on Wednesday January 12, 2005 @11:38AM (#11335357)
    I have no idea what it must be like to lose a son that way. ...but what if this guy finds out that his son, the soldier, had an insatiable for gay porn?

    There are things we don't want to know about people - its probably best not to go digging through their most personal stuff even after they've died.
  • Is that Justin Ellsworth probably didn't even read the terms of service when he signed up for Yahoo email.

    Certainly, he doesn't have much of an expectation of privacy now that he is dead.
  • In a few days, the account will get automatically smoked.

  • Having had to deal with dispersing the estate of family members I would have to think that this was a service that the deceased has subscribed to and it is the duty of the person with POE to properly close it up and deal with it. I don't see how Yahoo would be able to legally refuse in this case. As for the privacy aspect I don't see this really being an issue. You have died. You have selected (or had someone selected for you) to act on your behafe to take care of your afairs. Now I know that all my ex
  • I don't actually understand this.

    One sends emails to someone else rather than back to yourself so why do they need to get them from Yahoo?

    1. If individuals properly used encryption for their email, it wouldn't be Yahoo as the primary point of contact - it would be the senders and recipients of the email.
    2. Future DRM measures may put various corporations into a more central role in ways that we don't consider now. [Imagine if Nixon's tapes or Lewinsky's emails required corporate action to deciper.]
  • by climb_no_fear ( 572210 ) on Wednesday January 12, 2005 @11:52AM (#11335574)
    An old girlfriend of mine died in a motorcycle crash. While she was still alive, she told me her password for her e-mail account (my name - easy to remember). I only logged into her account once while she was alive (she was standing next to me and asked me to do so), so I know the password was correct. Hours before she set out on her fateful trip, she sent me an email which I only received after getting the phone call. At this point, I tried to log in to her email account to see if she had left behind anything else there but access was already blocked. After the funeral, we cleaned out her apartment. We found her diary (I knew she had one). However, she never explicitly said anything to me about whether I should read it. Diaries are a private matter, so when her stepfather gave it to me (her mother had passed away already and her half-brother was just too young), I went over to her best friend's house, we talked about it and decided that we would burn it in the fireplace together. My point is, common sense should have some say. In spite of any agreements with Yahoo!, etc., if my name is the password and I know it, wasn't this proof enough that she had agreed that I should be allowed to access her email? On the other hand, without explicit permission, I'd never read someone's diary, it's too private. Perhaps his Yahoo! account was Justin Ellworth's diary of sorts ....
    • I went over to her best friend's house, we talked about it and decided that we would burn it in the fireplace together.

      In my opinion you make a good argument as to why Yahoo is in the wrong here. You decided to burn it because you were the person dealing with her things and that it was appropriate. But that is not what is happening here, Yahoo, a service provider, is deciding for you that you can't have access to her diary. An (probably poor) analogy would be if her landlord (assuming she rented) told y

  • by jwilhelm ( 238084 ) on Wednesday January 12, 2005 @11:53AM (#11335593) Homepage Journal
    The article states "the young soldier had spent much of his spare time e-mailing his folks back home through Yahoo! webmail."

    That in mind, why don't the "folks" have the e-mails that he sent to them? Wouldn't you keep (even treasure) the e-mails of a family member, especially if the family member was in a situation where death may be near?

    Or even if they deleted the e-mails, I'm sure they replied to them first, so maybe they have copies in their Sent folder.

    It takes two people to e-mail, and even if Yahoo! won't release the e-mails I'm sure the OTHER end of the conversation may be more willing to do so.
  • by cphilo ( 768807 ) on Wednesday January 12, 2005 @11:56AM (#11335654)
    My son has done three tours in the middle East. My husband and I treasured every email that he was able to send, read and reread them and kept them in a special folder with his name. He sent us what he wanted us to know. If he had been killed, I would have respected his right of privacy. The other emails, I'm sure, have to do with gaming, interactions with his friends and military humor (not always tasteful). While getting the other emails may have been nice, anything he wanted us to see he would have forwarded. There is much going on over there that he will not tell us, even now that he is back. I would not have fought the deletion of the emails out of respect and love for my son. I question why it is so important to the family to get the emails.
  • by voss ( 52565 ) on Wednesday January 12, 2005 @11:58AM (#11335681)
    Emails are like letters, and letters are property
    of the estate. Unless there are specific instructions to the contrary(like in a will)...your heirs should get your emails like any other document.

    The privacy claim of yahoo is nonsense, the click through is standard boilerplate and is not intended to supersede the rights of heirs.

    The post office cannot withhold your mail from your heirs, what gives yahoo that right?
    • E-mails are not like letters. Letters have a physical component. E-mails have a physical component only if they are downloaded to a disk, which the deceased did not do for whatever reason. If he had downloaded the e-mails, the family would have the rights to that physical property. He did not.

      To further blow away your "e-mail = mail" misconception, read about your employer's ability to snoop through your e-mail []. Opening somebody else's mail is a crime, but e-mail lacks this protection.

      Let us not forge
  • by Anonymous Coward

    This problem arised because the dead soldier's parents do not understand the proper way to use a free e-mail account.

    All of the messages that the parents want to retrieve from Yahoo had been already sent by their son, or already sent to their son. In either case, the parents had a copy of the message at some point in the past, and they chose not to save it and back it up properly.

    Instead, the parents assumed that Yahoo was a reliable archive for old e-mail messages -- which is very risky considering that
  • reset password? (Score:5, Insightful)

    by Transfan76 ( 577070 ) on Wednesday January 12, 2005 @12:37PM (#11336229)
    I wonder if the family had tried to reset his password. I just tried with my yahoo account. It asked me for my birthdate, zip code, and what country I was in, and the yahoo ID. Then I clicked next. Then it asked me a question, which I gave the matching answer to, and it reset my password. Has the family not tried just going through this process?
  • Terms of service (Score:3, Insightful)

    by Ernesto Alvarez ( 750678 ) on Wednesday January 12, 2005 @01:35PM (#11337101) Homepage Journal
    IANAL but I've checked the terms of service in yahoo mail's server and I think yahoo is doing the right thing.

    Assuming those terms did not change because of this mess, J. Ellsworth should have read this paragraph:

    No Right of Survivorship and Non-Transferability. You agree that your Yahoo! account is non-transferable and any rights to your Yahoo! I.D. or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.

    It should be logical to assume that he did not want that mail to be revealed to the public (he wouldn't have chosen yahoo mail if that was the case).

    If he did want his mail to be disclosed, he should have had some sort of escrow account (that's one of the things the cc header is for anyway).

    The interesting thing is that the family is in a tight spot right now. If they do not prove him dead, they have no right to access his account. His father is definitely committing some sort of crime if he's hacking his account. If they prove he's dead by presenting a death certificate, yahoo could immediately block the account and erase the mail, and that would be ok (if they have not done yet, it is pretty evident he is dead now).

    I haven't though of that, but I wouldn't want anybody messing with certain things (like my mail or my private key) when I die, especially if I can easily set up some escrow system in advance (like he should have done if he really wanted his folks to access his mail, after all he wasn't going to a picnic, and he knew it).

    Yes, I'm being really blunt, but diplomacy is not one of my strong points (and it's too damn hot in here, so I'm not in my best mood).

The intelligence of any discussion diminishes with the square of the number of participants. -- Adam Walinsky