Email Privacy Times Change and 'so Do Essay

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Email Privacy

Times change and so do social institutions. When the laws protecting our privacy were originally drafted there was not even the notion of email. Such a concept was so futuristic as to be well beyond the most imaginative of the Founding Fathers. Today, however, emails have become a regular course of communication between members of society and, as such, they deserve attention. Do they fall within our expectation of privacy or does their digital nature make them automatically public?

The legal case that brought this issue to the forefront was that of a young marine, Lance Corporal Justin Ellsworth of Michigan (Chambers, 2009). Ellsworth was killed in action in Iraq in 2004 but prior to his death he had written emails to this family and friends. After his death, his family requested the email provider, Yahoo, to grant them access to Ellsworth's account but Yahoo refused to honor the family's request citing Yahoo's privacy policy as the basis for this refusal. The family filed suit demanding that Yahoo release the email information to them and when the Michigan Probate Court granted the family's request and Yahoo complied without an appeal the legal issue was never fully developed but the underlying issue of privacy remains. Should email communications be considered as personal property or should they considered as private communication and held permanently confidential? The Ellsworth case did not answer the question but did raise the issue of what should be done with digital assets such as emails when an individual is rendered unavailable due to either death or incapacity.

The intent behind the Ellsworth family requesting Justin's emails was likely honorable but it raises philosophical issues beyond the simple request. It raises privacy issues that may be addressed differently depending on which philosophical position one might adopt, either utilitarian or deontological. From the utilitarian point-of-view, the Ellsworth request should be honored if it creates more happiness than unhappiness for the greater good. For the Ellsworth family the granting of access to Justin's account would have been good for them but it would not have been good for society as a whole. Society's expectation of privacy in the sanctity of the email password would have been violated.

Interestingly, under a deontological approach to the issue the result remains the same. Deontology view issues from a precise set of precepts. There is a wrong and right perspective to everything and the consequences are irrelevant. The deontologist would view the Yahoo contract governing privacy controls as sacrosanct and non-negotiable. For the deontologist, Justin's singing of the contract assured him his privacy as to his emails and, barring a release from Justin, the information contained in his email account should be afforded absolute privacy.

Legally, written documents such as emails have been protected through one of three approaches (Richardson, 2010). The first approach is treating emails as intellectual property. Unpublished emails, that is, emails that have not been sent are considered literary work and should be treated like any another form of intellectual property. Intellectual property encompasses a wide range of creative works such as musical, literary, and artistic works but there is a strong argument that unpublished emails should be afforded treatment as intellectual property and, therefore, should remain the property of those who wrote them until such time as they are published. As private property in cases such as Ellsworth's the emails would become part of the probate estate of the deceased and would pass to the family by either the terms of the will or the laws of the descent and distribution in the jurisdiction of the deceased's residence.

Emails received by the deceased, however, are afforded different treatment. Because the emails were not written by the recipient there is an implied right, created by the fact that the original author of the email sent the email, that such emails can be copied and used. Emails marked as confidential and placed in a password protected file would demand different treatment but those deposited in a typical email account should be considered as openly available.

There does, however, remain a significant problem relative to access to email contents whether considered intellectual property or public domain and that involves the issue of a password. Although the unpublished emails may be deemed to be literary works and, therefore, private property and received emails considered publicly available does not address the issue as to whether or not email providers must release confidential email information. As a result, absent a court order granting access to the password, the intellectual property would die with the deceased.

The second approach toward the treatment of emails would be to consider them as simply private property. Presently there is no clearly defined law that distinguishes emails or other electronic documents as personal property but the natural transition of technological improvements demands that the law eventually do so. Emails are not some form of artificially created intangible object. They have developed into a personal part of our personalities similar to letters, diaries, and photographs. The electronic nature of emails makes them more quickly deliverable but no less personal than letters, diaries, or photographs. Property law has recognized these objects as personal property and provided them with personal property protections why is it so unreasonable to expect that electronic messages such as email not be provided the same protections?

The third approach in considering how to handle the disposition of emails is related to the privacy expectations of these documents. Assuming that the emails of deceased should be considered to be private property there remains the issue of the deceased's expectation of privacy. Ordinarily, however, common law individual privacy protections arising from expectations do not extend beyond death so what remains are the contractual privacy protections afforded the deceased through agreements with email providers.

As email has become more popular there has developed a complex and extensive series of contracts, displayed online when users subscribe for email services, which set forth the mutual agreements between the user and the service. These agreements are extensive and probably very rarely read but, nevertheless, the service providers are adamant in their claims that such agreements are intended to protect the privacy of the user's privacy. In the Ellsworth case, this was the basis of Yahoo's refusal to allow the family access to the deceased's email account. Yahoo capitulated with minimal resistance so the legal effect of Yahoo's contract and that of nearly every other email provider was never allowed to be fully reviewed by the courts but there remains a compelling argument that these contracts should be afforded full legal application.

Any user of the internet, even the most infrequent one, is well aware of the numerous efforts made by providers warning them of the need to protect one's passwords. These warnings are displayed prominently and frequently and given such prominence is it unreasonable that users come to rely upon the provider's protecting of this information? Taking this protection to the next level and being as sympathetic to the concerns of the deceased as possible it must be asked that if a deceased wishes to allow unbridled access to his email accounts there is no prohibition on his disclosing his password information while he is still alive to do so. The fact that such information is held as confidential indicates an expectation and wish to keep it so.

The sanctity of contracts has long been upheld by the courts (Benson, 2007). When users and providers enter into an agreement the terms of that agreement are expected to be upheld (Kozyris, 2007). One of these terms is the maintaining of confidentiality and security. In today's world where cyber crime and hacking has become a major problem it is incumbent upon service providers to attempt to increase its security provisions and interpret the terms of it security obligations strictly. The maintaining of the password information must be considered as one of their most important obligations. Thus, it should be the policy of the service providers to protect their relationships with their users and maintain the confidential nature of their users' passwords even in the event of death.

The easiest solution to the problem at hand is to have all email users provide their password information to someone that they trust so that in the event of an untimely death the issue of confidentiality will not have to be litigated, place such information in a safe deposit box, or specify in their will their intent relative to such information. Absent such provision, however, the intent that users display by agreeing to the terms of their contract with the service provider should prevail and the service provider should withhold the release of the information on the basis of contractual obligation.

This expectation of privacy and contractual obligation extends far beyond the issue of emails. As the internet becomes more prominent in the lives of computer users the storage of information beyond just email transmissions is becoming increasingly more popular. For instance, there are services available on the…[continue]

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