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What Happens to your Web-based Email After You Die?
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What Happens to your Web-based Email After You Die?

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  • 1. Ryanne Lai "What Happens to Your Web-based Email After You Die?" 21 st June 200 5
  • 2. Have you ever wondered…
    • Letters: your property
    • After you die,
    • they form part of
    • your estate
    • even if you put them in
    • a safe deposit box
    • Who owns your emails
    • when you die?
  • 3. The Case of Justin Ellsworth: Background
    • Justin Ellsworth
    • 20 year-old marine
    • killed in Iraq in Nov. 2004
    • Ellsworth's parents requested from Yahoo! the password of their son’s email account
    • Yahoo! refused
  • 4. The Case of Justin Ellsworth: Background
    • Yahoo!’s Terms of Service:
    • http://docs.yahoo.com/info/terms/
  • 5. The Case of Justin Ellsworth: Background (ii) the property right to the electronic documents (the soft copies)
    • the intellectual property right
    • (i.e. copyright)
    • to the content of the account
    (i) the right to access and use the email account
  • 6. Who Owns What?
    • Terms of Service: a binding contract
    • account is non-transferable
    (i) the right to access and use the email account
    • safe deposit boxes:
    • survivors get the right to the
    • contents of the safe deposit boxes,
    • not the right to access and use
    • the safe deposit boxes.
  • 7. Who Owns What? (ii) the property right to the electronic documents (the soft copies) “ personal chattels”: Intestates' Estates Ordinance (Cap. 73) ownership of electronic information ownership of the storage medium
  • 8. Who Owns What? (ii) the property right to the electronic documents (the soft copies)
    • Emails: a kind of personal property?
    • Two main components:
    • 1. contents
    • 2. source codes
    Justin’s emails Yahoo!’s servers
  • 9. Who Owns What?
    • “ literary work”: s. 4, Copyright Ordinance (Cap. 528)
    • the intellectual property right (i.e. copyright) to the content of the account
    Terms of Service: Yahoo! does not claim ownership of content submitted by the user
  • 10. Who Owns What?
    • the intellectual property right (i.e. copyright) to the content of the account
    • Limitations:
    • Cannot demand copies of emails
    • unless Yahoo! “knows or has reason to believe” that the emails have been or are to be used to make infringing copies: s. 109 , Copyright Ordinance
    • Confined to emails composed by Justin
  • 11. The Privacy Problem
    • Personal Data (Privacy) Ordinance (Cap. 486)
    • Only applies to “personal data”
    • and to data user that controls the collection,
    • holding, processing or use of personal data.
    • Common Law:
    • no such protection either
  • 12. Outcome of the Ellsworth Case
    • In the matter of Justin M.
    • Ellsworth, Deceased,
    • No. 2005-296,651-DE
    • (Oakland Co., Mich., Prob. Ct.)
    • Yahoo! was ordered
    • to provide the family of
    • Justin Ellsworth with
    • soft copies of all email
    • sent to and from his
    • email account
    Question of public interest?
  • 13. Steps to Take to Avoid Litigation
    • For service providers:
    • Let subscribers
    • indicate their
    • preference when
    • they sign up
    • for the service
  • 14. Steps to Take to Avoid Litigation
    • For end users:
    • Write a letter
    • to your executor
    • Set up a trust
    • Put list of passwords in safe deposit box
    • Specify in the will
    • the person you
    • want your email ownership to be transferred to
    • Entrust passwords to
    • people you trust
  • 15. Conclusion
    • Web service providers
    • now offer more storage
    • capacity
    What have your clients been asking you to do? What have you decided to do? ? ? ? A need to clarify the law in this area
  • 16. The End
    • Thank you!