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10 N.Y.U. J. Legis. & Pub. Pol'y 281 (2006-2007)
Who Owns a Decedents E-Mails: Inheritable Probate Assets or Property of the Network?

handle is hein.journals/nyulpp10 and id is 287 raw text is: WHO OWNS A DECEDENT'S E-MAILS: INHERITABLE PROBATE ASSETS OR PROPERTY OF THE NETWORK? Jonathan J. Darrow* and Gerald R. Ferrera** E-mail is 'comparable in principle to sending a first class letter..'. -People v. Lipsitz' I. INTRODUCTION In early 2005, military dad John Ellsworth made national news through his seemingly innocuous request to be allowed access to his deceased son's e-mail account.2 His twenty-year-old marine son, Jus- tin, was killed in Fallujah on November 13, 2004, by a roadside bomb.3 Mr. Ellsworth wanted to collect e-mails that his son wrote and received while in Iraq to create a memorial in his son's honor.4 Were his e-mails similar to sending a first-class letter, with all of the at- tendant implications for ownership and inheritability, or is the com- parison mentioned in Lipsitz inaccurate? Yahoo!, Justin's e-mail service provider, complied with Mr. Ells- worth's request, but only after receiving an order from a Michigan probate court.5 Yahoo! stated that, in the absence of a court order, * Assistant Professor of Business Law, Plymouth State University; Duke Univer- sity (J.D.), Boston College (M.B.A.), Cornell University (B.S.) ** Gregory H. Adamian Professor of Law, Bentley College; Executive Director, Bentley Global CyberLaw Center; New England School of Law (J.D.), Bentley Col- lege (M.S. Taxation), Boston College (B.S.) 1. People v. Lipsitz, 663 N.Y.S.2d 468, 473 (Sup. Ct. 1997) (quoting ACLU v. Reno, 929 F. Supp. 824, 834 (E.D. Pa. 1996)). 2. See Ariana Eunjung Cha, After Death, a Struggle for Their Digital Memories, WASH. POST, Feb. 3, 2005, at Al. 3. See id. See also Jennifer Chambers, Family Gets GI's E-mail, DETROIT NEWS, Apr. 21, 2005, available at http://www.detnews.com/2005/metro/O504/22/AOl-157 676.htm. 4. See Cha, supra note 2. 5. See Tresa Baldas, Slain Soldier's E-Mail Spurs Legal Debate: Ownership of Deceased's Messages at Crux of Issue, 27 NAT'L L.J. 10, 10 (2005) (citing In re Ellsworth, No. 2005-296, 651-DE (Mich. Prob. Ct. 2005)). 281 Imaged with the Permission of N.Y.U. Journal of Legislation and Public Policy

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