Monday, April 25, 2005

    E-mail Privacy

    When the family of slain Lance Cpl. Justin Ellsworth persuaded an Oakland County probate judge that they had some right to view their son's e-mail at Yahoo it marked a blow against personal privacy rights.
    Yes, there is the obvious compassion that is noted - to get as much from your loved one as possible - even in just the words of an e-mail, but should compassion overrule the right to privacy? NOWAY!
    I think the court went out of bounds on this one and should have ruled in the favor of Justin Ellsworth and his right to privacy. Really - don't you think that he knew that going to Iraq was risky and, knowing so, if he wanted his parents to have access to his e-mail account (just in case) he would have given them his password?
    Unfortunately Yahoo didn't feel compelled to protect those privacy rights too far and elected to just give in after the family took it to a probate judge. When you choose your email accounts note (as mentioned in this article) the e-mail service providers that give no thought to passing on what you think are private e-mails to family members - AOL, EarthLink, and Microsoft (Hotmail). If you want extra privacy make sure you either don't save e-mails that have been sent or you delete them often!


    Norma said...

    I'd have to think about this. Written content belongs to the writer, not to the recipient, whereas the physical piece belongs to the recipient. So, what is e-mail? Does it really exist in a physical sense? Who owns the content?

    In past wars, all personal effects were returned to family, the next of kin, and that included letters from friends, lovers, and family. Was the privacy of the deceased soldier violated in that case?

    Looks like you've got a good start on your blog (I didn't see any archives, so I'm assuming I'm seeing the birthplace of your blog.)

    : JustaDog said...

    Thank you for your post norma. I removed the archive feature. I changed the looks of everything else a bit and have just started to post again after loosing my 10+ year German Shepherd - a bit traumatic.

    The problem I see is Justin would have ALL of his email traffic exposed to his parents - everything. If Yahoo people went in to filter out only those emails intended to the parents then whoever at Yahoo would be invading Justin's privacy as well.

    I believe a person has a reasonable expectation of privacy when they use email accounts, and the privacy of Justin's has been violated.

    As far as ownership of content? Well ownership belongs to the author no matter where it physically resides. "Physical piece" is only whatever media holds the content. Words, ideas, diagrams, etc. only exist in a person's head unless there is some type of media to contain that content. E-mail (after typed) resides in some memory of some manner (varies). The hosting service does not own the content just because it resides physically on their mail server. I don't think the recipient owns" the content - they only have been permitted (by the author) to possess a copy of the content.

    Whymrhymer said...

    I heard this debate on Nat'l Public Radio this weekend and, initially, agreed with the decision that gave the email to the parents but after reflection and after reading your post "I'm reviewing the situation" (ala Fagin). What you say makes sense -- it's like back to the living will, Terry Schiavo thing again, i.e., be prepared for your demise.

    Pundit said...

    Something that people seem to forget in this debate about privacy is that by using somebody else's equipment to post your communications--in this case the server system of the ISP--you have little expectation of privacy in the long run. Unlike writing a letter which is your work on your paper and sealed from the eyes of everybody else except the recipient and carries a complete expectation that it is private, the internet involves the act of the user posting their work on somebody else's equipment and thus you have by implication given away your right to privacy. This is why people who use a telephone company's voice-mail or tele-messaging service are flirting with danger--until the message gets taken by you in your home, it is on their system and regardless of the legal squabbles involved, the old axiom of possession being nine-tenths of the law holds true. Until the recipient takes the message off the system, it is theirs to do with as they please. And if anybody out there is using that method, don't worry---under the homeland security mess, your messages can not only be intercepted, they have probably already been. Most telephone companies gladly comply with secrete requests from the government. The mere act of somebody going through the ritual of a police or court request and the server complying is a rubric. Especially with the legal "relaxation" of 4th amendment rights under section 215 of the USA Patriot Act. In reality, since it is their equipment and in the absence of getting a written agreement from a server to respect your privacy, only a fool would expect they have it. Legally there can be no expectation of privacy where you are, in essence, posting your thoughts on a bulletin board.

    Gullyborg said...

    Did he have a valid will?

    Because that is the real issue here.

    The deceased's e-mail is his property. If he left a valid will, he could "leave" his e-mail to anyone he wanted. If he wanted privacy, he could have left instructions for Yahoo to take possession and erase his e-mail.

    Without such a provision, his e-mail passes on with the rest of his estate, either by will or by intestacy.

    If he left a will saying "the remainder of my estate goes to person X" then person X gets the e-mail.

    If he had no will and the laws of intestacy preside, then his heirs by law, probably his parents if had no children, take possession of his e-mail.

    This is not a privacy issue. This is only an inheritance issue. The court ruled properly.

    Pundit said...

    Being former military, the standard procedure for all service personnel going overseas, whether to a combat zone or allied zone, is to complete a will. I doubt if the procedure has changed recently. Unless it has, then a will was made out, in which case the court may have overstepped its bounds. Adding to the confusion is whether or not such a clause would even be in the will in the first place, at which point the issue becomes contested onthe basis of what the maker of the will really intended. We can thank the legal fraternity for that twist. Beyond that, it may not be an inheritance issue. If the service provider owns the equipment and all material thereon, then inheritance would not make a difference. Completing a will does not negate the law, regardless of the intent of the person making the will. It would depend on the conditions stipulated in the service provider contract.

    : JustaDog said...

    Gullyborg your comment sounds very convincing except it is full of holes. E-mail is not some asset or liability that is part of an estate. In this case the only rights that the parents might have had would be those emails that Justin had sent to them. If he elected to save copies of those emails in his "sent" folder (an option in Yahoo mail accounts) then there would be no problem.

    The BIG privacy problem comes when his parents want ALL e-mails. Now we are talking about 3rd parties involved - their e-mail addresses, names, possible location data, content, etc. - privacy concerns that the parents would have no right to tap into. If Justin wanted his parents to see a 3rd party e-mail he would have cc'ed them on it. Also, even e-mails that were directed from a 3rd party to Justin (Justin did not originate) - more privacy concerns.

    So YES, it was most definately a privacy issue!

    simoncat said...

    I believe that this is an encroachment of privacy, for all the reasons you mentioned. However, as Pundit has remarked, I think we are fooling ourselves if we think we have total privacy on the internet. The point still remains though, that unless you have left a will or directive to the contrary, your email should remain protected under the privacy laws, I don't care what the extenuating circumstances.

    simoncat said...

    BTW: glad to see you back, I was afraid you had left the blogosphere after losing your doggie. Hope you are feeling better. :)


    Pundit said...

    "ME" made an excellent point. What about emails that were not sent to the family? The otehr people in his life that would like their privacy may not want other third parties horning in. There is an increasing tendency as demonstrated here and in the Schiavo matter for family members to assume their relationship trumps all other issues, and this is going to create a severe problem if the courts don't nip it in the bud.

    gullyborg said...

    no you're looking at this all wrong.

    imagine you have a diary in which you write private thoughts, and an address book in which you have a number of unlisted phone numbers, and a shoe box in which you keep all the private letters you ever received.

    then you die.

    someone is going to take possession of your stuff and there is nothing you can do about it.

    if you leave a validly executed will (and the wills military troops make before shipping out are usually NOT valid!!! neither are wills written on most pre-printed forms. GET A LAWYER), then your property goes somewhere you choose.

    if you specify your diary, address book, and letters go to a specific individual, that person takes them. otherwise, they are part of the remainder of your estate and go to the person so named (as in "I leave everything else to my wife").

    You have NO privacy right to this property. The best you can do is hope the person who takes possession according to your will is the person you trust to do the right thing (like maybe you ask this person, before you die, to burn your private documents).

    If you leave no valid will (this means even if you tried to write a will but for whatever reason you failed to make it valid), then the laws of intestacy apply and your possessions are divided BY THE PROBATE COURT among your legal (by blood) heirs.

    In this case, the court goes through your stuff and distributes it amongst the heirs as it sees fit. You have no control over who sees it because it is a public record at this point.

    NOW compare the diary, address book and letters to your e-mail account. IT'S THE SAME THING.

    The intellectual property stored on the servers at Yahoo is yours. When you die, someone gets it. Who gets it is determined by probate.

    PERIOD. Case closed.

    What can you do about this? Like anything else in life, you can apply the law of CONTRACT.

    Many services, including various savings accounts, insurance companies, etc., have a death provision. You sign a contract to pass your interest in something on to a specified person upon death.

    Check the service agreement you sign when you get your e-mail account (you DO read the things you sign, don't you?). Is there a death provision? If not, ASK ABOUT ONE.

    If you are dealing with a huge company like Yahoo, odds of getting an actual human being to respond to a contract need are slim to none.

    If that bugs you, don't do business with them.

    But if you do business with a local ISP, you can probably walk into their business office and talk IN PERSON to their sales rep. Write a contract with whatever privacy clauses you want.

    You want all your data erased on death? Put it in the contract. You want your spouse to have access to your data? Put it in the contract. You want the ISP to sell your private information to spammers? NO? Put that in the contract.

    I honestly don't see what the big deal here is anyway. The guy is dead. I don't think he cares anymore. The people who got his e-mail are his parents. I don't think his mom wants to exploit his secret personal data. She wants to be able to contact the people on his e-mail list and let them know about her son's death. She doesn't want to sell the address to spammers.

    Lighten up about it.

    Pundit said...

    gullyborg still isn't getting the point. What a person has as a tangible object in their own home, under their exclusive control, becomes subject to the laws of probate or matters of testate, whichever apply depending on whtehr or not a will was executed and what was specified in the will. What you post on somebody else's equipment, that you may not have an expecatation of privacy on because others than yourself have access to the equipment, is a different issue entirely. Anytime anybody else has access to something you do, for whatever reason, especially if you do not have controlling interest or physical control over, as in this case the equipment of an ISP, then any expectation of privacy is lost.

    Case is NOW closed.

    Gullyborg said...

    Intellectual property is by nature intangible, but you still have a property right to it.