Inheriting Deceased's E-mail New Jersey Law Journal March 7, 2005 HEADLINE: Inheriting Deceased's E-mail; A parent's suit to access a dead child's e-mail raises novel issues BYLINE: By Jonathan Bick; Bick is of counsel to WolfBlock Brach Eichler of Roseland and is an adjunct professor of Internet law at Pace Law School and Rutgers Law School. He is also the author of 101 Things You Need To Know About Internet Law [Random House 2000]. BODY: Unlike traditional letters, which normally reside in one physical location and under the control of the recipient, e-mails may reside in multiple physical locations and under the control of more than one party. Recently, the parent of a deceased child sought access to that child's Yahoo! e-mail account and Yahoo! refused to give the parent access. The novel characteristics of e-mail will likely result in an untraditional outcome of the Yahoo! matter. Copies of e-mail may reside in one or more locations. The location is usually a function of the e-mail protocol employed. The two most often used protocols are POP [Post Office Protocol], and Internet Message Access Protocol [IMAP]. POP e-mail is "popped" [downloaded] from the inbox of the e-mail server to a local machine, either manually or according to a preset time interval. The e-mail is normally deleted from the server when it is downloaded. IMAP e-mail resides on the mail server so your e-mail and folders are accessible regardless of which computer you are using. Clearly, if the parent in question is in possession of the desired e-mails because the parents saved a copy of each e-mail sent to them or because they owned or inherited their son's computer within which the desired e-mails still reside, they would own the e-mail. However, the facts of the case at issue are that the desired e-mails were not in the possession of the parents. While the parent in the Yahoo! matter might suggest that like other intellectual property, such as traditional letters, the e-mail should pass as part of the inheritance. Yahoo! may argue, however, that the contract between Yahoo! and the deceased extinguished that property right to the contents in the account. Additionally, Yahoo! must honor the terms of service which it uses for all 40 million U.S. Yahoo! account holders. These terms of service state that survivors have no rights to the e-mail accounts of the deceased. Failure to honor such terms of service might lead to litigation based on a deceptive practices cause of action. It is unlawful under such circumstances to say one thing and do another. Finally, privacy advocates indicate that such a release would be a violation of the deceased's privacy, particularly because the parent was not given access while the deceased was alive. However, deceased generally are not afforded privacy rights, so such an argument would not likely prevail. Both AOL and Hotmail have procedures for transferring e-mail accounts of the deceased to next of kin. This is not significant to the Yahoo! matter, however, because the transfer is specified in their terms of use service agreements. Thus, a deceptive trade practice claim is not an issue for AOL or Hotmail. Under common law, the copyright rights vesting in e-mails, like other possessions both tangible and intangible, are included in the estate of the deceased. Traditionally, a copyright as property would pass to the executor. The fact that e-mail is in electronic form may make no difference. Generally, all property -- real, personal, tangible or intangible -- wherever situated, is included in an estate as long as the decedent has a beneficial ownership interest in it at the time of his death. State law determines what property interests are included in the estate. It is the beneficial ownership interest in property that determines whether it is included in the gross estate, regardless of who holds title or has possession of the property [see Stewart v. Commissioner, 49 F.2d 987 [10th Cir. 1931] and Estate of Borland v. Commissioner, 38 B.T.A. 598 [1938]]. However, common law copyright and rights that spring from the Copyright Act may be altered by contract. In the case of Yahoo!, the germane clause states that the e-mail user agrees that their Yahoo! account is nontransferable and any rights to the e-mail contents terminate upon the user's death. This clause seems to extinguish the relevant property rights to the contents in the account. The Copyright Act [17 U.S.C. Section 106] gives the copyright owner exclusive rights to transfer ownership of his or her copyright rights. The Copyright Act allows authors to transfer their rights to another and terminate copyright rights they have granted to others. The act also allows certain members of dead authors' estates to exercise termination rights. See 17 U.S.C.A. Sections 203[a][1][2]. These termination rights are extremely limited: they last for only five years, do not arise before thirty-five years after the grant, and require the reclaiming owner or owners to give prior notice. See 17 U.S.C.A Sections 203[a][4], 304[c][4] [describing form and timing of notice of termination] and Section 304[d][1] [incorporating the conditions of §[304[c][4] by reference]. Thus, such termination rights would not be applicable in the Yahoo! case. In addition to the Copyright Act's limited right of copyright termination, the law strongly supports the voluntary transfers of rights. In particular, consider Restatement [Second] of Contracts Section 208 [1979], which describes the narrow conditions under which a court might refuse to enforce a contract when it is based on a voluntary transfer. The most likely condition set forth in the Restatement for refusing the enforcement of the contract in the Yahoo! matter would be unconscionability. However, no evidence of unconscionablity has been suggested. As noted above, privacy advocates indicate that such a release would be a violation of the deceased's privacy. This argument is not likely to prevail. Ordinarily, privacy rights of a deceased expire at the time of death, even though certain interests in name and personality may not. Consequently, the common law tenet that prohibits a cause of action for defamation of the dead also prohibits a cause of action for invasion of a deceased's privacy. Courts have also found that one's legal interest in privacy ends upon death. As the court in Price v. Hal Roach Studios, Inc., 400 F. Supp. 836, 844 [S.D.N.Y. 1975], explained, since the cause of action intends to protect feelings, any claim for damage to such "feelings" should logically end upon death. Additionally, the Restatement [Second] of Torts 652I states that except for the appropriation of one's name or likeness, a person's privacy interest ends upon his death. Despite the general rule, the court in Loft v. Fuller, 408 So. 2d 619, 624 [Fla. Dist. Ct. App. 1981], allowed the possibility that a relative of a decedent could recover for an invasion of privacy that was directed at the decedent. In that case, the court said that if a wrongdoer's conduct toward the decedent was "sufficiently egregious" the decedent's relatives could have a cause of action for invasion of privacy. Thus, defending nondisclosure of information after a person has passed away on the basis of privacy would present significant legal difficulties. A typical result was found by the district court in New Era Publications Int'l v. Henry Holt & Co., 695 F. Supp. 1493 [S.D.N.Y. 1988], aff'd, 873 F.2d 576 [2d Cir. 1989], when it dismissed a privacy argument by noting that the author of the copyrighted work was dead, thus eliminating his privacy interests. This would also be the likely outcome should a privacy argument be present in the Yahoo! matter.