We live in a digital world. Whether you want to share a cat playing the keyboard YouTube video with a friend, or sensitive information with a client, connecting and communicating online are all but unavoidable. As a result, the digital assets we use on a daily basis make up an increasingly important part of who we are and what we do. But the legal right to these digital assets is a complex issue, and U.S. laws and legislation move much slower than advances in technology.
While we may naturally consider an email account no less a part of our personal property than the physical mailbox in front of our own house, our email provider's terms of service may state otherwise. So, what happens to email and other digital assets if the worst should happen? It's a morbid question, but one that no doubt has become a significant matter in the realm of estate law, as society becomes increasingly digital.
Transfer of Email Upon Death
Let's look at the case of Justin Ellsworth and his family. In November 2005, Justin Ellsworth, an American soldier in Iraq, was tragically killed in combat. Upon his death, Ellsworth’s family sought to retrieve the email content in his Yahoo! email account. According to the Yahoo! terms of service (TOS), however, the account is non-transferrable and terminates at death. Based on the TOS, which each user must agree upon, Yahoo! initially refused the Ellsworths' request, claiming that the request violated its privacy rules.
Yahoo! claimed no copyright in the actual email content itself, as its TOS indicate. Rather, it only housed the server, maintaining its status as the gatekeeper for access to the digital files. In other words, the contract between Justin and Yahoo! has overruled the Ellsworth family’s copyright ownership of the content.
Yahoo! ultimately complied with the Ellsworths' request after being issued a court order1 from a Michigan probate court. It seems Yahoo! was not ultimately interested in the actual content itself; rather, Yahoo! foresaw the slippery slope associated with violating its own terms of service.
One state’s legislation has already addressed this digital issue. Oklahoma recently passed a bill that allows an executor of an estate to control any email or social media account of the deceased, “where otherwise authorized.” But even with this legislation, there are still questions and potential complications. Would this language allow an executor to view or terminate a decedent’s email account if the TOS agreed upon include non-transferability, or termination upon death?
Furthermore, this problem extends to online banking. If someone dies, his or her creditors must be notified. With standard mail, it is possible to see what has arrived without opening it and violating privacy. Not the case with email. Upon death, financial statements, bills, and alerts sent to the deceased’s email can easily pile up without any notice to creditors.
Yet another question to complicate matters: How does email ownership vary based on the type of email used?
There are three common ways to receive email today: POP3, IMAP, and web-based. Each transfers email from user to user differently, and (perhaps more importantly) stores email differently. Should it matter if the email is stored locally or on a server in another location?
Even emails to and from a Yahoo! webmail account can be saved locally to your personal computer if you set up a desktop application like Microsoft Outlook or Mail.app (the standard Mac application). What if Justin Ellsworth had stored his Yahoo! email locally on his PC? Would his family have the right to access those files after his death without Yahoo!’s permission? As is often the case, from a legal standpoint, the answer is maybe. Even if a state passes a law to protect digital property (i.e. Oklahoma), will it necessarily apply to the future platforms or methods of creating and sharing information that haven't been released (or even thought up) yet?
These digital estate and property complexities extend far beyond email, though.
What About Social Media Platforms?
Social networking is a much newer phenomenon than email. New enough that there is currently no case law available to form a legal precedent. However, with over half a billion users on Facebook alone, we are sure to see property and estate cases emerge in this realm soon.
While these services may be helpful, the question still remains: What happens if an online platform's TOS state that an account is non-transferrable, or terminates upon death? Several of the major social networks have such clauses. Take Facebook, for example. According to blogger Rachelle Matherne, in a post called “Your Digital Legacy”:
Memorializing a loved one's profile seems like a meaningful way to commemorate and remember him or her; but it doesn't provide you with access to that person’s account. You therefore are not able to view or claim ownership of private messages.
Market research company ComScore reports (via TechCrunch) that email use is in decline, especially among 12-17 year olds (59% decline!), who are using social networks like Facebook to correspond with peers in place of email. If the worst should happen, family members of the deceased may have the same interest in private message content on Facebook as they would in email content.
According to Matherne, in addition to Facebook, other social sites that do not allow account information to be transferred upon death include Twitter, MySpace, and other services owned by Yahoo!, such as Flickr and Delicious.
Google, on the other hand, does not have a general umbrella policy in its TOS for accounts of the deceased. YouTube and Gmail, two of Google's most popular platforms, both have policies that leave the door open, at least in some circumstances, for transferring account information upon death.
Eventually, we will see more case law on this subject. Just as with email, it will be interesting to watch courts decide what it takes to override the check-box terms of service contracts, which all social networking users must agree upon, but rarely ever read.
- Jonathan J. Darrow and Gerald R. Ferrera, WHO OWNS A DECEDENT'S E-MAILS: INHERITABLE PROBATE ASSETS OR PROPERTY OF THE NETWORK?, 10 N.Y.U. J. Legis. & Pub. Pol'y 281, 2007.
David Reich is CEO of SixEstate Communications, a content marketing firm that works with professional journalists and editors to produce top blogs for clients around their most important topics and issues -- from childhood obesity to Colorado personal injury law and everything in between.
David H. Green, Esq. is an intellectual property and litigation attorney in New York and New Jersey, who graduated from the University of Miami, School of Law in May 2010.