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Privacy of the Deceased: Should your password rest in peace?

In an era when electronic media has quickly outpaced all other forms of communication development, it is not surprising that new ethical considerations will arise. One of the most fascinating examples of the divergent speed of technology and the race to legally and ethically keep up is the case of a young Marine who, after heroically and tragically losing his life in Iraq, was at the center of a court battle to determine whether his privacy would be violated posthumously if his parents accessed his Yahoo!

e-mail account. As one embarks on an ethical study of this particular case, it becomes apparent that many gray areas exist, particularly with regard to burgeoning legal issues. The purpose of this paper will be to explore the moral and ethical implications, from utilitarian and deontological perspectives primarily, and to touch only upon those legal quagmires when relevant to the ethical concerns presented. To briefly frame the case and to highlight the relevant ethical concerns, the following details are offered.

Justin Ellsworth, the Marine killed in Iraq, had a Yahoo! e-mail account, for which he and Yahoo! were the only known holders of his account password. Ellsworth, at the time of opening his Yahoo! account, agreed to Yahoo’s Terms of Service (TOS) agreement, which included a privacy clause that indicated upon inactivity, Yahoo! would terminate the account, gave no indication of any right of survivorship to the contents of the account, and specifically disclaimed any transferability of the account (Llewelyn Leach, 2005). Ellsworth’s parents sued Yahoo!

claiming this was not simply a matter of legal “ownership” and therefore a part of Justin’s estate subject to customary property dispensation, but rather a matter of ethics. They were grieving parents wanting to see what were, perhaps, the final words their son had issued in his e-mail prior to being killed in the line of duty. Because Yahoo! was eventually ordered by a court to turn over those records, the parents of Justin Ellsworth won their case (Chambers, 2005). However, the larger, moral and ethical debate surrounding this case remains.

If one holds that ethics are to be guided by a normative utilitarian approach, suggesting that the consequences of actions must produce an outcome that is in the best interest for the majority of people, one would view the outcome of this case as outrageous. Yahoo! and other free e-mail service providers offer clients a degree of anonymity and privacy unlike traditional internet service providers (ISPs). At the time of registration, one need not provide any pertinent private information in order to activate an account.

The additional TOS agreement further delineates the rights of the account holder to privacy, and in the event of inactivity, either by lack of use or something more permanent such as death, that the account will be terminated and the contents of the online “storage” will be deleted. This agreement provides millions of individuals the freedom to interact in a manner that has the expectation of privacy surrounding those interactions. The direct implication of a “password” to gain access, which the user can choose to share, or not, depending upon the privacy of the contents, clearly defines the contents as personal and private.

A contemporary correlation could be that of a safe deposit box key. The contents of either the box, or in this case the e-mail account is irrelevant, so arguments made for or against this issue based on whether the material is illicit, immoral or even embarrassing is secondary to the concept of the expectation of privacy assumed by millions of users as they choose a personal password to protect their personal correspondence and online communications.

By utilitarian standards, clearly the greatest good for the greatest number would be to protect the right to privacy as dictated by the TOS agreement and the expectations held by millions of users: that the contents of their private accounts are in fact, private. However, rarely does a philosophical argument not have an equally persuasive counter-argument.

The deontological approach to this situation requires us to consider the moral implications of the case without regard to the universality of the outcome, and with direct consideration of the moral duty or obligation involved. From this perspective, the judge in the case, and ultimately Yahoo! in its compliance with the court order, had no other choice than to honor the wishes of the dead Marine’s family and allow them to see any final mail he might have written in his account.

The idea that the Marine’s final “mail,” which in paper format would have been delivered and dispersed by the next of kin or executor of the estate, would never reach it’s intended audience or that important documents would linger in cyberspace, or worse yet be destroyed without some personal oversight by someone acting on behalf of the estate seems to fly in the face of moral duty or obligation. Certainly the case can be made that in anyone’s estate matters, potentially embarrassing or unintended information can surface, so again the argument regarding content cannot be credibly upheld.

However, from a moral duty vantage, it would seem that unresolved personal matters, including those found through what is reasonably becoming the most common form of communication worldwide – e-mail, should be subject to the same care and “clean-up” as any other personal estate matter. The argument has been posited that if a person should wish for the contents of their e-mail account to be known to others after they have departed, they should leave that information in a will or some other form of advanced-directive for their executor (Llewelyn Leach, 2005).

In an age when practicality cannot keep pace with technology, a sense of reasonableness needs to be applied. In the case of Justin Ellsworth, the court saw fit to intercede and order Yahoo! to turn over the contents of a young, dead, hero’s e-mail account to his family in the hopes that they will receive some peace of mind from the contents they found. Was this in keeping with Justin’s wishes? No one may ever know for certain.

However, the knowledge that a court can order an ISP to turn over all messages in an inbox has left the rest of us scrambling to permanently delete some files, erase a bit more history, and as a result, feel just a bit less private about our internet communications.

Works Cited:

Chambers, Jennifer. “Family Gets GI’s e-mail. ” The Detroit News April 21, 2005. Retrieved January 8, 2009 from < http://www. detnews. com/2005/metro/0504/22/A01-157676. htm>. Llewelyn Leach, Susan. “Who gets to see the e-mail of the deceased? ” The Christian Science Monitor May 2, 2005.

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