Once upon a time, there was a marine named Justin Ellsworth who by all accounts was a good guy, up till that day that he was killed in the line of duty. So all the normal things happened after his death like the funeral, mourning and going through his things to determine what to save or toss out. Well as these things were happening Justin parents wanted to also save his email so that they could know there son better. This is where things got complicated, as Justin did not leave his password to his yahoo.com account or presumably, a provision in his will for his email accounts. (Monitor, 2005)
So what are Justin’s parents to do, how do they gain accesses to his yahoo.com account? Well first, they contacted Yahoo, requested his emails, and explained the situation. But Yahoo refused to release the emails. (Monitor, 2005) This was due to a ”No Right of Survivorship and Non-Transferability” clause in the Yahoo! terms of service. (yahoo, 2008). The clause states:
“No Right of Survivorship and Non-Transferability. You agree that your Yahoo! account is non-transferable and any rights to your Yahoo! ID 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 (yahoo, 2008).”
As you can see, in said clause there is no provision for the family of the deceased to have accesses to the account. This is in contrast to other email providers like Gmail and Hotmail who allow the email accounts of the deceased to be accessed, provided certain requirements are met. (wikipedia, 2012) So what was the Ellsworth family to do? Well in 2005, they were able to get a Judge to order Yahoo to handover the emails of Justin to his family. (wikipedia, 2012) (Monitor, 2005) However, why did they have to go to court and should have yahoo denied the emails to the family in the first place?
Disclaimer up front, I am not a lawyer; the only experience I have with litigation is in family law and patent/copyright law. With that said, why did the Ellsworth family have to go to court? Well as stated above, yahoo’s own terms of service did not allow for the transfer of accounts. This is mostly in my opinion for security reasons and liability. In the security standpoint; let us face it documents can be faked and social engineering is an excellent method for hacking an email account. With that said, we now look at liability. What if someone clamed you were dead to gain access to your account and your email provider allowed them to have access. You would most likely feel that your privacy was violated, and then you might want to seek restitution through the courts. The inevitable lawsuit could end up costing the email service provider millions of dollars. To prevent this from happening Yahoo put a clause in their terms of service to prevent the possibility of litigation due to personal privacy violation from a false declaration of death. Therefore, you can see Yahoo’s terms of service was designed to protect them from the possibility of litigation.
Should Yahoo have been forced to turn over Justin’s email to his parents? Under the utilitarian ethical principle, yes they should have. The parents have a right to know what their son wrote and what his life was like. At the same time, Yahoo had the right to protect its self from harmful litigation. This left the courtroom the only option available to the family at the time. In that, I recognize the rights and needs of both parties.
If I were to be in the same situation, I would expect the same treatment of my email. Why you say, well I expect Yahoo to take all measures necessary protect my personal communication and if that means my family would have to go to court to gain access to my email then so be it. The rule of law shouldn’t be ignored for a minority of individuals to placate their fragile emotional needs. In that, I agree with Gerald Ferrera in what he said, “I would hope that the Yahoo! position here would become a trade practice – that e-mail would only be released if a judge approved it,”. (Monitor, 2005) If Yahoo had capitulated to the request of the family, them its terms of service would have become meaningless, making it necessary for the family to go to court. If you break your terms of service for one family, them you have to break it for others and there would be no way of closing the floodgates.
If you as a service provider do not abide to your own terms of service, you must ask why have them at all. The email service provider must enforce its terms of service. This is to protect their users and themselves for harmful litigation. Could of Yahoo change its terms of service after the 2005 verdict? Yes, it could, but as of today the clause in question still exist. (yahoo, 2008) And with that said I still expect them to enforce it. We as citizens in the modern world follow the rule of law for the betterment of all humanity. The laws we have keep the honest, honest and the dishonest somewhat honest.
Works Cited
Monitor, S. L. (2005, MAY 02). Who gets to see the e-mail of the deceased? Retrieved OCT 29, 2012, from proquest.com: http://search.proquest.com/docview/405542051/13A18A487D45E1F25F1/1?accountid=28844
wikipedia. (2012, Oct 29). Death and the Internet. Retrieved Oct 29, 2012, from wikipedia.org: http://en.wikipedia.org/wiki/Death_and_the_Internet
yahoo. (2008, Nov 28). Yahoo! Terms of Service. Retrieved Oct 29, 2012, from Yahoo.com: http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html
