December 24, 2004
NEW YORK - As more of our personal lives go digital, family members, estate attorneys and online service providers are increasingly grappling with what happens to those information bits when their owners die.
Sometimes, the question involves e-mail sitting on a distant server; other times, it's about the photos or financial records stored on a password-protected computer.
This week, a Michigan man publicized his struggle to access the Yahoo e-mail account belonging to his son, Marine Lance Cpl. Justin M. Ellsworth, 20, who was killed Nov. 13 in Iraq. Though Yahoo's policies state that accounts "terminate upon your death," John Ellsworth said his son would have wanted to give him access.
"He was wanting to forward his e-mail from strangers," Ellsworth said. "They were letters of encouragement. He said all their support kept him motivated. We've talked back and forth about how we were going to print them out and put them in a scrapbook."
To release those messages in such circumstances, Yahoo said, would violate the privacy rights of the deceased and those with whom they've corresponded.
"The commitment we've made to every person who signs-up for a Yahoo! Mail account is to treat their email as a private communication and to treat the content of their messages as confidential," spokeswoman Mary Osako said in a statement.
But Osako said the company was dealing with uncharted territory and was willing to continue discussions with Ellsworth. One option could involve Ellsworth getting a court order, which Yahoo would abide. Ellsworth said he preferred to avoid litigation.
Other 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 spokesman Nicholas Graham said the company gets dozens of such requests a day and has a separate fax number, mailing address and full-time service representative devoted to fulfillment. Nonetheless, some privacy advocates question whether that's a good approach.
"People might decide what they want family members to see or keep secret sometimes for family harmony reasons," said Peter Swire, an Ohio State University law professor who served as former President Bill Clinton's chief privacy counselor. "They may know secrets of other family members that they hold in confidence: The sister had an abortion; the father had a first marriage."
Swire said Yahoo's policies are stricter than those for medical records - and rightly so. He said quick access to medical records is needed for emergency care, and such records are unlikely to trample other people's privacy rights, as e-mail could.
Rather than maintaining an either-or policy, perhaps service providers could ask users when they sign up whether they'd like e-mail disclosed upon death, said Jason Catlett, president of the privacy-rights group Junkbusters Corp.
"If you put money into an IRA (individual retirement account) or a mutual fund, they will ask you for the next of kin," Catlett said.
But Graham said cell phone providers and fitness centers don't make similar requests, and doing so with Internet service "is simply a turnoff and it's not necessary. We already have a process that works quite well and quite responsibly."
For now, such disputes are rare, and most struggles for access involve family members who need to obtain financial records on a computer, said Bob Weiss, president of Password Crackers Inc., a Maryland company that recovers lost passwords. Less than 2 percent of Weiss's business involves relatives of the deceased, he said.
Still, "as more of our lives go online, hosted faraway, we will want to think carefully about the disposition of those bits," said Jonathan Zittrain, a professor at Harvard Law School's Berkman Center for Internet & Society.
Decades of laws and court decisions already guide physical possessions, especially when there is no will. What makes online assets different is the fact that they often involve some service contract with an outside company, said R. Michael Daniel, an estates attorney in Pittsburgh.
The easiest approach, Internet scholars say, is simply to leave behind a password.
"I think this (Yahoo) case will be helpful to people who are thinking about issues not only of inheritance but planning," said Jonathan I. Ezor, a professor of law and technology at Touro Law Center in Huntington, N.Y. "When one family member tells another where the important paperwork is, the will, safe deposit box key, etc., the list of passwords is going to be added to that."