Posted on 12/21/2004 6:03:41 AM PST by wmichgrad
WIXOM, Mich. (AP) — Lance Cpl. Justin M. Ellsworth's e-mails from the battlefront in Iraq were brief and optimistic, eager for news from home and written to reassure loved ones that he was alive and well.
The 20-year-old Marine was killed by a roadside bomb on Nov. 13 during a foot patrol in Al Anbar province.
His body has been returned home to his family, but his e-mails are being held in an unusual legal limbo that has pitted his Oakland County family against Internet giant Yahoo!
"I want to be able to remember him in his words. I know he thought he was doing what he needed to do. I want to have that for the future," John Ellsworth, Justin's father, told The Detroit News for a Tuesday story. "It's the last thing I have of my son."
It's a new problem in the modern war, one in which families less frequently rely on words written on paper and instead, rely on e-mail.
John Ellsworth is pleading with Yahoo! to allow him access to his son's e-mail account to fulfill the family's wish of reading, seeing and knowing the young man's last words, pictures and thoughts from the front lines in Iraq.
The family wants the complete e-mail file that Justin maintained, including notes to and from others. But without the account's password, which only Justin and Yahoo! know, the family's request has been repeatedly denied.
In addition, Yahoo! policy calls for erasing the entire account if, after 90 days, there is no activity.
Some legal observers say the e-mail is part of Justin's personal property and would be the property now of his father who has power of attorney over his son's estate, although such action would likely require a court order.
Others say Yahoo! has a contractual obligation to Justin and all e-mail subscribers to protect their confidentiality and privacy — dead or alive.
Yahoo! maintains that all e-mail account users agree to the following contract when they sign up for service: Any rights to a member's Yahoo! ID or contents within an account terminate upon death. Once a death certificate is received, the contents of the account are permanently erased.
"While we sympathize with any grieving family, Yahoo! accounts and any contents therein are nontransferable, including when the account holder" dies, said Karen Mahon, a Yahoo! spokeswoman.
John Ellsworth said his son agreed to forward the hundreds of e-mails he had received and the dozens he had written back to his father so he could make copies of all the dispatches and put them into a scrapbook for when Justin returned home.
I look forward to hearing what others here have to say about this.
Candi
Whoa.
Not all this soldier's e-mails may have been to his family. There may be sexual or other ones in there that would be VERY disturbing to the folks back home.
When someone died in Vietnam we went through his effects and weeded out stuff we didn't think parents or wives should see (porno photos, etc.) before packing and shipping out the deceased's personal effects. So I think Yahoo's policy is not only legal, but wise and compassionate.
P.S. I'm a U-Mich Undergrad and Post Grad Graduate.
Almost forgot, Yahoo really is a godless, heartless, conscienceless corporate giant.
IMO, there is a contract between Yahoo and the account holder, and when the account holder dies, the contract dies.
That said, I'm not so sure that the account is transferable as "personal property".
Im also not sure how I feel about this. Im afraid though I would have to agree with Yahoo.
"Gee, I'm not sure WHAT I think of this. I'm not sure I'd want my family going through my e-mail, even after I'm gone."
I feel the same. I feel bad for the family, but on the other hand, I don't like the precedent this would set.
I don't think that the family automatically gets a right to an account created between the deceased and a third party. If the son had wanted his father to have access, he could have given him the password. Although I hate to say it, I wonder if there's another reason they're hoping to get access.
If the fallen soldier had REALLY wanted his father to have access to his email account, he would have given him the password.
Please notice that it's Yahoo claiming it's a valid contract ~ dumb move on their part ~ means it can be dealt with as can any other piece of property.
Me either. If the family wanted to see their son's e-mail they should have asked him for his password. I don't think Yahoo should be deciding whom to share your password with. You as the owner can share your password with whomever you decide, and if you decide not to share it you surely wouldn't expect Yahoo to take it upon themselves to share it. This would be a horrible precedent.
There is also a public policy issue involved in this as well, which will need to be addressed.
And where is there an implied contract?
Yahoo! is doing the right thing. They should not release an account holder's private information or saved emails to any third party without a specific court order.
"Free" is a relative term. I don't have a Yahoo account, but I imagine that it pushes ads to the user.
http://www.pwcrack.com/index.shtml
This is a case where both parties have good points. I'm glad I'm not a judge.
I actually side with Yahoo on this one. Not all emails may have been to his family, and they may end up seeing an email they wish they had not seen, although I certainly understand why they want access to the account.
This is really tough. I feel for the family, but at the same time, if this soldier wanted his father to have access to these items it seems he would have set up an account that his father would have access to. There are ways to do this- blogs etc.....
Steven J. Caspi, et al. v. The Microsoft Network, L.L.C., et al., 1999 WL 462175, 323 N.J. Super. 118, 732 A.2d 528 (N.J. App. Div., July 2, 1999)
On this appeal, the Appellate Division affirmed the determination of the Superior Court of New Jersey that the plaintiffs had entered into a binding contract by agreeing on-line via the click of a mouse to be bound by the terms of the Microsoft Network's subscriber agreement. The terms of this agreement appear in a scrollable window next to blocks containing the words "I agree" or "I disagree." The user cannot commence use of the Microsoft Network unless she clicks the "I agree" button. Each of the plaintiffs clicked the "I agree" button, thereby indicating their assent to be bound by the terms of the subscriber agreement. Both the trial and appellate courts held this created an enforceable contract between the defendants and their subscribers.
---------------
Thus, it appears that there would be a valid contract between Yahoo and the account holder. As such, the contract terms would rule, i.e., the language that the account dies with the account holder.
I am sure that Yahoo put that clause in there for this exact reason. Moreover, it would be extremely bad precedent for a court to rule otherwise.
When I first saw this story, I thought some emails he had SENT to his family were being held by Yahoo! for some reason.
Now that I see the real story, I say his family has no case. If he had wanted them to have access to the emails in his account in the event of his death, he should have given them the password. One obvious way to do that would be for him to have put it in a sealed envelope among his personal effects. They have wills, don't they?
Password Crackers, Inc. will not and cannot recover passwords for accounts at America Online®, Yahoo®, Hotmail®, other dial-up email accounts or websites. If you have legitimately lost your password to one of these services you need to contact the service provider to recover it. Please do not call or email us regarding these issues.
As our homepage mentions, we are not hackers and will not engage in any illegal activity to recover passwords. We work exclusively on behalf of legitimate users who require password recovery services for their own files and/or accounts. Our standard agreement, required for each client, makes this clear.
There are a number of reasons why we do not perform these services (and why you should be skeptical of anyone who says they do.)
First, since we cannot independently verify the true owners of America Online® accounts and screen names, Yahoo®, Hotmail® or other dial-up email accounts we cannot perform password recovery services for these accounts.
Second, since AOL®, Yahoo® and Hotmail® and almost all other on-line services are willing to help their legitimate account holders recover their passwords, there should be no requirement for account holders to contact an outside service such as ours to recover passwords. We understand that often these services require access to an email account that was used when the registration was created or knowledge of private information such as a secret question response. We recognize that if a legitimate user no longer has access to the original email account that they may not be able to use the password recovery method provided by the service, but we cannot help with this.
Third, actually hacking into the servers of AOL®, Yahoo® or Hotmail® is illegal and and brute-force attacking the password is completely impractical. It is likely that these services use some type of IDS (Intrusion Detection System) and that your activity will be logged and shut down long before you are successful at recovering your password. Attempting a brute-force attack on these systems is like sending an engraved invitation to the FBI to arrest you (which is far more likely to occur than getting your password back.) If we gave you software which automated this attack it would take 200,000 years before you even had a small chance of recovering the password. ...
Account holders of Yahoo® and Hotmail® accounts who have lost or forgotten their passwords should contact their service providers for assistance.
http://www.openwall.com/john/
bump
Yes, see my post 5. This just puts the onus on someone else and, if it is Yahoo, they open themselves up to some form of legal challenge so I'm certain that can never happen absent a resolved Court Order and a release for Yahoo. IMO you are correct in your plea for a common sense decision - The problem is who's common sense and will the family accept it.
This is certainly not a new issue. Yahoo would like for you to believe there's no recourse, but that's like the signs at the parking garage that says "we are not responsible". Sometimes they are!
Honestly, I don't know if I like this. This is really something to think about. After you die, everybody can go through your personal emails. I don't think so. Sounds like something you have to make your wishes known. Another ethical problem.
BTW, what you are saying is the issue should be resolved in probate, not in the bowels of Yahoo.
Thanks for the address. I am going to email her in support of Yahoos policy.
Something of value "passed". Their advertising to your eyes. Besides, they say there's a contract, and there's no requirement that a contract involve "passing" much more than gas.
Let's take it to probate. Yet another judge should decide this one. After all, each and every estate is different isn't it? Otherwise why would we visit lawyers immediately after a loved one dies.
Yahoo would like you to believe the question is always resolved in their favor, which, if true, would make you wonder why they have so many staff lawyers.
The whole issue needs the blessing of a judge. No doubt Yahoo gets away with what they do simply because folks don't care, but here we have someone who cares. It really doesn't matter if Yahoo bulldozed 100 million people, number 100,000,001 still has rights.
"If someone is going to go through my underwear drawer when I die, I doubt I'd care if they go through my email."
But the key difference is that unless there is a secret diary in the underwear drawer, the family wouldn't be hurt by going through it.
Email contains expressions of thoughts and feelings that the family might find disturbing.
But while the account holder may have a copyright interest in his writings, that is different from Yahoo's obligations in preserving those writings.
Also, not every estate goes through probate. Here in PA, an estate must have a certain value before it gets probated. I imagine that the same is true in other states.
In the broader sense that's simply part of the "probate process". More narrowly, it avoids action in open court, and that's what most folks think of as probate.
Let's see the declarations, and the property at stake, and have some responsible person (as established in the law) make some decisions.
I don't believe anyone ever deputized Yahoo to do any of this.
And no, I have no bias whatsoever against Yahoo. On the other hand, I do distrust the living when it comes to parceling out the property, interests in property, or implied interests in property of the dead. They've always been that way, eh!
First, you have a valid contract between Yahoo and the account holder. The contract says that upon death, the account terminates and is erased.
Thus, when the account holder dies, the account dies, and anything in the account dies. While you may have had a copyright interest in the writings, if they are only stored on Yahoo's servers, they are gone upon notice of your death. Thus, there is nothing for a judge to look at.
I feel conflicted here. The family's grief must be terrible, but I believe that Yahoo is right in their determination. If he meant his thoughts to be left for his family, he would have kept a journal or some such.
My heart breaks for the family who is trying to find something to hold on to. But yahoo is right in upholding their policy. The Marine has a right to privacy, dead or alive in my opinion.
In 49 states. Louisiana contract law is slightly differnt. But in any event, there is adequate consideration. When you log on, you probably see ads. I think Yahoo also appends a small ad at the bottom of each email sent. Either of these would provide adequate consideration. Even the additional traffic generated for Yahoo when folks go there to check mail is probably adequate consideration.
So all of the classical common law elements of a contract should have been met.
That would be a sure way for Yahoo to get sued.
Besides, who gave Yahoo the authority to decide that it's client was actually dead?
When you are dead you no longer have a claim on "privacy". That's pretty much been the law for thousands of years.
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