Who Owns E-Mail - Do You Have the Right to Decide the Disposition of Your Private Digital Life 2006 Utah Law Review 2006

2006 Utah L. Rev. 397 (2006)
Who Owns E-Mail - Do You Have the Right to Decide the Disposition of Your Private Digital Life

handle is hein.journals/utahlr2006 and id is 407 raw text is: Who Owns E-mail? Do You Have the Right to Decide
the Disposition of Your Private Digital Life?
To live as a self-governing individual is the essence of the value of
autonomy, so that to be autonomous is the 'core of a valuable human
existence.' Accordingly, autonomy is the foundation for many rights
to control one's life and one's possessions, including the law of wills.
In fact, the freedom of testation is a fundamental value in the law of
wills because it accords with the strong human desire to exert
control over one's own property.'
I. INTRODUCTION
One of the most powerful rights granted to citizens of the United States is
the right to dictate the disposition of their property at death.2 Despite the
simplicity of this fundamental power, the disposition of the most intimate
details of our lives is in question. What once seemed to be a trifling matter has
now become a perplexing legal conundrum. Probate's most recent challenge
has us asking, who owns our privately created electronic messages (e-mail)
and other digital information? Digitization was once a concept nobody took
much time to understand. As our private and professional lives are transformed
into a paperless cyberspace, family members, estate planning attorneys, and e-
mail service providers are increasingly grappling with what happens to our
digital information when we die.
Understanding what happens to personal digital information upon the
death of its owner is becoming such a pressing legal concern that estate
planners can no longer neglect this global digitization. Although the general
rules of property and ownership are fundamentally defined, the same cannot be
said for ownership rights of personal e-mail. Indeed, the current landscape
respecting e-mail ownership is in a state of flux wherein nobody can identify
who owns what and the rules that govern property vary from person to
person.3 In this unsettled area of law, advising clients with respect to their
digital matters can mean the difference between tranquil administration of their
estates or bitter ensuing litigation.
With the ever-increasing conversion to and reliance on the digital
transmission of information, and the recent rash of public inquiries regarding
the disposition of deceased family members' e-mail accounts, clients deserve
'Tanya K. Hern~ndez, The Property of Death, 60 U. PIrr. L. REV. 971, 976 (1999)
(citations omitted).
2See Hodel v. Irving, 481 U.S. 704, 716 (1987) (In one form or another, the right to pass
on property-to one's family in particular-has been part of the Anglo-American legal system
since feudal times. (citing United States v. Perkins, 163 U.S. 625, 627-28 (1896))).
3TERRY L. ANDERSON & LAURA E. HUGGINS, PROPERTY RIGHTS: A PRACTICAL GUIDE TO
FREEDOM AND PROSPERITY 1-2 (2003).

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