Sunday, June 24, 2007

Email: Til Death Do Us Part?

We get a newsletter occasionally from one of our lawyers that contains general interest legal items. The last one we received addressed an issue that I'd never considered before. What happens to our email after we die?

Two real-life examples demonstrate the potential problems. The first example is that of the parents of a Marine who was killed in Iraq. They wanted to access his email as a way to remember him, preserve something of his life and words. His ISP denied their request, citing privacy concerns. The parents did win access in probate court. The second example is that of a daughter needing access to her father's email account after he died. Evidently, he kept even the addresses of friends in his email and his daughter had no way of notifying them of her father's death. Again, she was denied access by her father's ISP due to privacy concerns.

Who owns your email, the ISP or you? There are vast discrepancies in the ways ISPs handle survivorship issues and the best thing to do is to read your ISP's privacy statement. I use Gmail for my email (as opposed to my ISP). I looked over the privacy information and did not see this issue addressed anywhere.

It's tricky; email lives on the ISP's servers. Plus any reputable ISP has a great privacy policy which will protect you while you're alive. But, it's my email. (Is it?) My words, my thoughts, my purchase information, my links and pictures. I'm no lawyer, but it seems to me that my right to privacy might die with me and that passing along my email to the next of kin shouldn't necessarily create privacy concerns among the ISP's living customers. If the email is my property, it should be "willable" (see, I'm really no lawyer!) along with the rest of my stuff.

According to my lawyers, the best thing to do for now is to review the privacy policy and switch if necessary and also to make your personal wishes known, possibly in your will.

I still have much thinking through to do on the privacy/property ramifications of this issue, but I am clear about one thing: I DO want my immediate family (husband and kids) access to my email in the event of my death.

If you know more about this issue than I do (and I'm quite certain you do), please let me know your thoughts.

ETA: It seems to follow that if something is worth protecting as a matter of privacy, then it belongs to that someone; it's their private property. It will certainly help them to have specific instructions to follow in a will, but if instructions are not available, the matter should be settled very straightforwardly in probate. I'm just not seeing how other people who use that ISP should be worried about their personal privacy.


softwareNerd said...

In a safe-deposit locker, perhaps the place you keep your will, also keep a sealed list of important passwords.

On the legal issue, if an executor is allowed to go through private letters and papers, email ought to be the same. Sounds like the probate court decided that way, and it'll probably be formalized in law some day.

Rational Jenn said...

You know, that's a good idea, the safe deposit box. Think I might just do that. My husband especially needs to do that as he is a computer programmer type and probably has a zillion passwords.

I agree, I think it will come down in favor of the executors or next of kin, but it's concerning that it's an issue at all. In the meantime, I think we'll be as explicit as we can be about our electronic legacy, just in case.

Thanks for the input!