In article <telecom24.199.7@telecom-digest.org>, Lisa Hancock
<hancock4@bbs.cpcn.com> wrote:
> Lisa Minter wrote:
>> by Susan Llewelyn Leach Staff writer of The Christian Science Monitor
>> It's an old story with a heart breaking twist. A young marine is
>> killed in the line of duty in Iraq and his parents, in their sorrow,
>> request all his belongings, including his correspondence -- in this
>> case, his e-mail.
> The e-mail should be treated no differently than any other personal
> belongings and they revert to the next of kin or recipients specified
> in a will.
"Not exactly." ALL the property and "personal belongings" of the
deceased belong to the ESTATE of the deceased. Until properly
distributed to the inheritors -- either in accordance with a
distribution schedule specified in a will, or according to statutory
specifications.
> This really should be a no-brainer, and the parents should not have
> had to go court to get what was rightfully theirs.
It _is_ a no-brainer. and the parents went about things the *wrong* way.
> There is nothing special about e-mail that make them any different
> than any other very personal belongings, such as a diary or account
> statements. All of these pass on to an estate via the executor or
> next of kin.
Everything passes _into_ the ESTATE, and is distributed from there to
the inheritors.
All that had to happen was for the _executor_ of the estate to contact
the Internet company, providing the *COURT*AUTHORIZATION* that (a)
certifies that the person *is*, in fact, deceased, and (b) gives them,
_as_executor_, access to any/all property belonging to the deceased.
The family did _not_ have such documentation, when the original
request was presented.
The Internet company quite _rightfully_ refused to turn over the
property of another person, on the "say so" of an unknown party, who
was claiming that the account holder was deceased.
[[.. munch ..]]
> In the event there is any legally confidential material in an email
> account, the estate executor would be responsible to care for it just
> as he would any confidential documents found within an estate.
Eureka! That's right. But it was *not* the _executor_ that made the
request to the Internet company. Hence the "difficulties".
> Senders of sensitive information by email have often been told that
> email is not private and to be cautious.
>> The Internet company refuses to give out the marine's password, saying
>> that would violate its privacy rules.
> To do that the Internet company would have to have explicitly had a
> contract clause stating it would destroy all stored email upon the
> death of a subscriber in all cases.
Wrong.
Until the "Internet company" has _proof_ in their hands that the
requesting party is *legally*authorized* to have access, their
responsibility is to (a) the account holder, and (b) if the account
holder is deceased, to the _estate_ of the account holder. They must
be notified _by_the_estate_ "agent" -- the executor -- if ownership of
the property has been transferred to another.
As the parents did *NOT* present a claim that they were acting 'on
behalf of' THE ESTATE OF THE DECEASED, *their* request -- made in
their own persona -- was properly denied. "Even if" they claimed that
the estate executor had authorized the request, a denial was still
proper. The Internet company must hear it directly from the executor
-- not mere 'hearsay' that the executor authorized the action.
[[.. munch ..]]
> It doesn't work that well. Your personal effects automatically
> revert to your family or estate unless you explicitly give
> instructions otherwise. This is the way it always worked.
BZZZT! Such effects belong to the ESTATE. Unconditionally. Which is
responsible for distributing them according to law, and _maybe_ the
specifications of a will.
> The executor of an estate is duty bound to ascertain all assets and
> personal property of a deceased and distribute per the will.
> Accordingly, the executor needs access to anything and everything
> belonging to the deceased. If no executor was appointed, that would
> to next of kin with the same rights of access.
Wrong. Next of kin does *NOT* have any legal "rights of access".
"Next of kin" is simply the statutory 'default' beneficiary of the
estate, absent other distribution requirements (statutory, or the
"express wishes" of the decedent).
In an "informal" settlement of an estate, if *nobody*objects*, and
there are no "recorded" title matters involved, the various parties
can just 'divvy things up' amongst themselves. However, if _anybody_
says "no", then the formal processes *are* required.
That's what happened here. The mail-provider said "No. We require
the _formal_ process."
They were entirely _correct_ to do so.
Just for one extreme hypothetical -- suppose that the soldier had had
a falling-out (entirely on _his_ side) with the family and did not
want them to have *anything* of his. That he had left a will to that
effect with the military -- naming his new girlfriend (of whom the
family knew nothing) as his *sole* beneficiary.
Now, what happens if the Internet company did give the parents access
to his account, and _later_ the executor demands access/control. HOW
does the Internet company explain to the executor that they "gave
away" that account, and the mail in it, to somebody else?
Yes, it _looks_ "cold and uncaring", but the Internet company DID THE
RIGHT THING here.
The emotional appeal of "but, we're his _PARENTS_!" does not
substitute for the _legal_ authority to access another's private
property. Even if that person is deceased.
[TELECOM Digest Editor's Note: I would think however, that if the
'internet company' later got in a legal hassle about this -- let's say
for example, tomorrow I showed up at the ISP's office with my properly
notorized papers as the executor of the soldier's estate and asked
them where is my email, and made a legal stench because they (ISP)
had already given it away to someone else, they (ISP) could make a
reasonable defense: "We acted in good faith; not knowing of any other
executor to the estate. Typically for unmarried young soldiers who
die in combat, their parents _are_ the executors, and in good faith
we worked with them on that basis." I think that would hold up if
the ISP were to get sued, since it is unreasonable the ISP as one of
its obligations is to search for other executors.
But ... I got these stories out of order. About two weeks ago I
published a report from Associated Press on this self-same soldier and
the parents grievances with the ISP: In that version from AP last
month the _ISP_ had handed over the mail to the parents who (at that
point) had started sorting it out for the scrapbook collage the mother
wanted to make. Much ado about nothing it seems. After the soldier's
father had sorted through a couple thousand plus pieces of email (the
build up between the time of his death, the parents starting their
inquiry, Yahoo finally obeying the court order, etc), it turns out the
_real_ saveable email from his buddies, girl friends, etc amounted to
_five_ pieces of mail; _huge_ loads of spam, unsolicited porn, etc
made up the rest -- the majority -- of it. Not being particularly
internet-savvy, the father had spent several days _actually reading
through each of the propositions_ -- commercial and err, 'otherwise'
that had stuffed this kid's email box before finally throwing up his
hands in disgust; five email letters, a couple thousand pieces of
trash ... had it been _me_ or most of you, if the subject line had
not given it away, the first two or three words of the text would have
been sufficient to cause it to get bashed. Poor parents! What _must_
they think of us here on the net these days. PAT]
Robert Bonomi (bonomi@host122.r-bonomi.com)