Matthew A. Kopetski
Captain, United States Army
Judge Advocate
The military community understands that soldiers deployed "down range" have infrequent, irregular and brief opportunities to communicate with their friends and loved ones. Surviving family members of soldiers killed “down range” have a difficult time bringing closure to the soldier’s death because they know very little about the soldier’s life “down range” and the detailed circumstances of their death. Legal Assistance attorneys can counsel deploying soldiers about the merits and consequences of giving a letter to someone they trust that contains the user ID and password to their e-mail account. This letter should be given with instructions that it is to be only sent if the soldier dies.
The Wall Street Journal Europe (WSJE) recently brought attention to a Wisconsin case involving the parents of a marine killed in Iraq who desire to their son’s Yahoo! e-mail account. Yahoo! and other private internet based e-mail account providers will not give such access to protect the account holder’s privacy.
The WSJE cites a case involving John and Debbie Ellsworth, the parents of Lance Corporal Justin Ellsworth who died in Iraq while investigating an improvised explosive device (IED) in the Al-Anbar province. Mr. and Mrs. Ellsworth contacted Yahoo! to give them access their son’s account. They made this request believing that such access would comfort them in their time of grief. They also intended to use the saved e-mails as a resource to build a scrap book to commemorate their son’s life. Yahoo!, citing the company’s privacy policy, refused the Ellsworths’ request. Mr. and Mrs. Ellsworth then retained an attorney because they believed the e-mails stored in their son’s account were property belonging to his estate and that; as the estate’s beneficiaries, they should be given access. The Ellsworths’ case is not yet resolved, however, their attorneys believe that they will reach an agreement with Yahoo!.
The list of families potentially in the same position as the Ellsworths increases every day. Legal Assistance attorneys are well positioned to address this issue as part of their preventive law program. LA attorneys can counsel deploying soldiers about the merits and consequences of giving a letter that contains the user ID and password to their e-mail to someone they trust. The merits include comforting their loved ones by enabling them to piece together his or her life “down range.” The consequences include that access is not selective and the soldier may want to protect his or her privacy even after their death. In the alternative, LA attorneys may advise deploying soldiers to draft a letter specifically telling their loved ones to respect his or her privacy and not attempt to access his or her e-mail account posthumously. LA attorneys providing this counseling should also instruct deploying soldiers to keep the contents of his or her letter secret from the person intended to deliver it to the soldier’s loved ones.
Experts in the field of internet privacy, including Ms. Cindy Cohn of the Electronic Frontier Foundation, Prof. Michael Froomkin at the University of Miami School of Law, and Ms. Dina Wong an attorney at Yahoo!, all agree that this is the most practical solution to this problem. This solution avoids a situation where surviving relatives have to hire an attorney that will compel an internet based e-mail service provider to grant them access to the deceased soldier’s e-mails. This solution also empowers the soldier to decide whether he or she wants to give such access.
