Ryanne Lai "What Happens to Your Web-based Email After You Die?" 21 st June 200 5

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?

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?

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

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

The Case of Justin Ellsworth: Background Yahoo!’s Terms of Service: http://docs.yahoo.com/info/terms/

Yahoo!’s Terms of Service:

http://docs.yahoo.com/info/terms/

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

the intellectual property right

(i.e. copyright)

to the content of the account

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.

Terms of Service: a binding contract

account is non-transferable

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.

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

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

Emails: a kind of personal property?

Two main components:

1. contents

2. source codes

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

“ literary work”: s. 4, Copyright Ordinance (Cap. 528)

the intellectual property right (i.e. copyright) to the content of the account

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

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

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

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

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?

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

Steps to Take to Avoid Litigation For service providers: Let subscribers indicate their preference when they sign up for the service

For service providers:

Let subscribers

indicate their

preference when

they sign up

for the service

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

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

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

Web service providers

now offer more storage

capacity

The End Thank you!

Thank you!