Law and Technological Developments Justin Ellsworth\'s Parents

Law and Technological Developments

Justin Ellsworth's parents should not have been given access to his e-mail correspondence. Notwithstanding the court order, Yahoo!'s decision to disclose Mr. Ellsworth's e-mail to his parents seriously compromises privacy rights and is not supported under either a utilitarian or deontological moral framework.

The Utilitarian Perspectives

According to West (2004), "[u]tilitarianism is the ethical theory that the production of happiness and reduction of unhappiness should be the standard by which actions are judged right or wrong and by which the rules of morality, laws, public policies, and social institutions are to be critically evaluated" (p. 1). Stated differently, "the rightness of actions is to be judged by their consequences" (Smart, 1956, p. 344). Accordingly, in Mr. Ellsworth's case, a utilitarian must ask whether disclosing his e-mail -- e-mail that was protected from disclosure by an explicit privacy policy -- is justified by the consequences. We do not know the long-term consequences from a court-ordered disclosure of correspondence to next-of-kin; in the short-term, however, online bloggers and others lamented Yahoo!'s decision (Leach, 2005, p. 12). The apparent "consequences" of Yahoo!'s actions, as seen by these individuals, is that one's privacy is no longer safe, even if it bears the indicia of a privacy policy. These viewpoints are not without merit. Indeed, from an extreme utilitarian point-of-view, one may argue that Yahoo!'s actions undermine the very essence of the privacy policy between the user and the company. In other words, Yahoo! did not follow the "rules . . . Of common sense morality" (Smart, 1956, p. 346).

The justification, then, for disclosing the e-mail to Mr. Ellsworth's parents hinges on whether the decision creates greater happiness for the "whole." On a micro scale, Mr. Ellsworth's parents are certainly satisfied with the court's order, and are undoubtedly more "happy" now than they were as a result of the decision, i.e., the consequence. They now have access to a part of their son's life that they may not have otherwise seen; messages he may have wanted to send, things he may have wanted to say, memories they would not have otherwise had. On the other hand, this disclosure undermines the very essence of agreements, to one degree or another. Even though Yahoo! stood by its long-held policy not to disclose the contents of Mr. Ellsworth's messages, under threat of court-order, they conceded. If we compare the "happiness" that this decision creates for the rest of society, certainly, it cannot be said that the consequences of this decision, on a macro level, justify the decision; many more people are experiencing "pain" from this decision in the form of increased apprehension of one's private life and matters. Accordingly, from a utilitarianism point-of-view, Ellsworth's parents should not have been given access to his e-mail.

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The Deontological Perspective

In contrast to utilitarianism, deontological moral beliefs are premised on the notion that certain acts are wrong in and of themselves (Lippert-Rasmussen, 2005). However, like utilitarianism, there are sub-classes within the moral framework. For instance, "absolute deontologists" "believe that some acts are impermissible whatever the consequences of not performing them" (Lippert-Rasmussen, 2005, p. 17). Conversely, "non-absolute" deontologists believe that "although certain acts are impermissible even if it would be better to perform them, it is not impermissible to perform them, if the consequences of not doing so are sufficiently bad" (Lippert-Rasmussen, 2005, p.17).

Considering Yahoo!'s actions from both an absolutist and non-absolutist perspective, the result is the same; Ellsworth's parents should not have been given access to Mr. Ellsworth's e-mails. Consider the situation from an absolute deontologist perspective. Assuming, arguendo, Yahoo! would prevail in appealing the court's order to disclose the e-mails, the consequence of not giving Ellsworth's parents access to his e-mail was that they would not have been given access to part of their son's belongings -- belongings which Ellsworth may have intended to remain private (Leach, 2005). The "bad" act, in this case, is the disclosure of private correspondence in violation of Yahoo!'s privacy policy. The policy set the parameters on disclosure; violating those parameters is an impermissible act. The fact that the consequences to Ellsworth's parents are minimal lends further support for denying them access under an "absolutist" deontological perspective. A non-absolutists deontologist would likely agree with the decision above as well. Although at first glance the effects of disclosing the e-mail to Ellsworth's parents do not appear to be "sufficiently bad," the fundamental flaw with this position is that the decision ignores the macro implications on society. If one's private e-mail correspondence is subject to disclosure to family members, including, among others, spouses, the privacy assurances of web-based e-mail accounts such as Yahoo! are compromised. Stated differently, the consequences of disclosing Mr. Ellsworth's e-mail to his parents are "sufficiently bad," as the decision undermines confidence in utilizing e-mail, and more importantly, the supposed "privacy policies" that web-based e-mail providers commit to follow.