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When Lance Corporal Justin Ellsworth was killed in Iraq in November 2004, his death sparked an unexpected controversy about e-mail ownership. Ellsworth’s parents requested access to Ellsworth’s Yahoo e-mail account, and Yahoo refused, citing internal privacy policies and explaining that accounts terminate when account holder’s die. As a result, Ellsworth’s family went to court, attempting to force Yahoo to pony up the e-mails. Yahoo, like most free e-mail providers and many Internet service providers, terminates its customers’ accounts upon death — depriving the estate or successors access to significant intellectual property resources. The automatic application of these policies are shortsighted for Yahoo and other companies, which need to take a more reasonable approach to ownership of electronic databases that they maintain for third parties. Meanwhile, individuals and companies need to think ahead, and create both durable powers of attorney for their electronic information and assets, and “cyber” living wills. The Ellsworth case is the first of its kind to be widely reported, but this issue is bound to recur. These days, intellectual property, in all its forms, is almost exclusively created and stored electronically. Personal information — intimate correspondence, diaries, and financial and medical information — as well as records related to informal chats, messages, and even Web browsing activities are likewise stored electronically. The myriad of passwords, user IDs, or other contrivances used to both protect this information and to ensure access are frequently held by one individual. Even knowledge about where this information is stored, or what e-mail or other accounts may exist, may be unknown to others. Sometimes vital corporate intellectual property is stored in an encrypted form — with only a single corporate agent able to unlock it. Corporate and governmental agencies frequently (although not as frequently as they should) create disaster recovery or business continuation plans to automatically store and retrieve this information, but rarely consider how to access this information if key individuals are unavailable due to either death or incapacity. This problem is exacerbated when companies and their agents use off-site storage or remote e-mail providers to transmit or store intellectual property. E-mail providers like Yahoo and Google encourage subscribers to keep all of their data online. Yahoo and Hotmail each offer 250MB of storage to subscribers. Google offers its GMail customers 1GB, proclaiming, on the GMail welcome page, “Don’t throw anything away. 1000 megabytes of free storage so you’ll never need to delete another message.” So, suppose a user keeps e-mail and other copyrighted information on Google’s servers (and doesn’t back it up anywhere else). What happens to the data if that person dies, is incapacitated, or stops using Google for a period of time, or if Google decides to terminate the account due to inactivity, as is its right under its service agreements? If Ellsworth had printed his sent and received e-mails, and then died with them in his foot locker, these would be considered his personal effects and would likely have been the property of his estate. Similarly, if the e-mails had been stored on his personal computer, PDA, or even a cell phone, these physical objects would be part of the estate. This is more than an esoteric point — personal correspondence may have tremendous historic or economic value. The letters of John and Abigail Adams, Thomas Jefferson, Walt Whitman, and others contribute to our understanding of history. The Ken Burns Civil War series illustrated the import of even private correspondence of ordinary soldiers. In December 2004 a letter written in February 1865 by Lincoln assassin John Wilkes Booth to a friend was sold for $86,000. Fortunately, Booth did not use e-mail, or two months after his death, the letter would have been deleted. The problem in cyberspace is that the ownership of electronic information is linked with the ownership of the medium in which the electronic information is stored. If Ellsworth had stored these e-mails on an Army-owned laptop, it would not be clear that they were part of his estate. In the corporate world, many companies have policies limiting or prohibiting personal use of corporate systems. Personal e-mails, or documents, stored on corporate networks or computers may be difficult if not impossible to retrieve — not only upon death, but even on the employee’s termination or resignation. More difficult is a corporate policy that permits limited (nonoffensive) personal use of e-mail, but then states that “all e-mail is the property of the company.” What exactly does that mean? While the employer would likely have a right to read and review such e-mail, and possibly even to delete it, such a policy is unlikely to constitute a mandatory transfer of the intellectual property rights of the author, or give the employer an unlimited license to use the work. Suppose an employee uses a corporate e-mail account or server to send his publisher The Great American Novel, written on his own time. The mere fact that a corporate network was used is likely insufficient to transfer copyright rights. We need to distinguish between ownership of the physical (or virtual) document, ownership of the copyright to the content of those documents, and the right to monitor the content. What the employer wants, for the most part, is the ability to monitor content, not to claim absolute title to the communication. In Yahoo’s public response to the Ellsworth family request, a spokesperson reportedly said, “While we sympathize with any grieving family, Yahoo! accounts and any contents therein are nontransferable even after death.” The Yahoo terms of service do state that e-mail accounts are nontransferable, and rights to e-mail contents or passwords terminate upon death. But this is intended to apply to transferring the account — not to accessing the contents of the account, and certainly not to ownership of the information in the account. Ellsworth’s parents don’t want to use his account — they simply want to read the mail in it. While Yahoo may not want to go through the expense of maintaining a dormant account, simple inactivity should not confer an ownership right to what amounts to a storage company, or deny an ownership right to the party’s successor in interest. The issue of ownership is important because electronic storage is used not only for correspondence, but also for documents. Intellectual property and other information represented electronically may be stored remotely, and individuals, as well as companies, need to have a plan for succession of this information. Sometimes we may want this information to be public — after a period of time after our demise or incapacity. Sometimes we want to ensure that this information remains private. Even if Yahoo can terminate Ellsworth’s account, it’s unclear who owns the intellectual property represented in the e-mails. Clearly, any copyrights, patents, or other IP rights that are represented in these documents transfer upon his death to his estate. However, absent a probate court order, Ellsworth’s family may never be able to access those documents. In addition to ownership of physical documents and of the IP contained in them, it appears that Yahoo is legitimately concerned with protecting Ellsworth’s privacy rights. The company is demanding that a probate or other court of competent jurisdiction determine whether Ellsworth’s family is acting on behalf of the deceased soldier. It is easy to anticipate a situation where a spouse reads stored e-mails postmortem, and discovers evidence of infidelity or worse. It is not clear the extent to which personal privacy rights dissipate after death, but there is no reason to believe that a promise to protect privacy (like those contained in the terms of service of the online providers) should terminate on death. Thus, while Yahoo invited the Ellsworth family to get an order of a probate court permitting access to the e-mails, it is not clear that the probate court will — or even should — permit such access. Typically, the court would look to the intent of the deceased. The problem here is that the decedent probably did nothing to make his intentions known. In theory, a broad durable power of attorney properly executed and delivered to third parties could allow someone to have access to electronic assets, but this does not deal with the problem at Yahoo where an account simply “disappears” upon death or inactivity. There is no requirement that these e-mail providers give the attorney-in-fact that password, or otherwise keep the account alive. Thus, as a practical matter, access to the IP dies with the owner, absent a court order stating otherwise. At present, Yahoo has simply told the Ellsworth family to get such a court order. But will a probate court carry out Ellsworth’s wishes? So when you create a free e-mail account, whether with an Internet service provider or with a free service, you should also create an “Internet Living Will” designating who can have access to your electronic assets in the event of death or incapacitation, and the scope of their authority to act on your behalf. And who knows, maybe that Great American Novel will be published after all — albeit posthumously. From 1984 to 1991 Mark D. Rasch led the U.S. Department of Justice’s criminal division’s efforts to investigate and prosecute computer and high technology crime. He is currently senior vice president and senior security counsel for the Omaha, Neb.-based Internet security firm Solutionary and is based in Bethesda, Md.

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