Ownership of a Decedent’s E-mail Remains Controversial

Jonathan J. Darrow  (Assistant Professor of Business Law, Plymouth State University) and Gerald R. Ferrera (Gregory H. Adamian Professor of Law, Bentley College) have recently published their article entitled Who Owns a Decedent’s E-Mails: Inheritable Probate Assets or Property of the Network?, 10 N.Y.U. J. Legis. & Pub. Pol’y 281 (2006-2007).

Here is an excerpt from the introduction to their article:

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. His twenty-year-old marine son, Justin, was killed in Fallujah on November 13, 2004, by a roadside bomb. 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. Were his e-mails similar to “sending a first-class letter,” with all of the attendant implications for ownership and inheritability, or is the comparison mentioned in Lipsitz inaccurate? ***

This Article is divided into six parts: Part II outlines some copyright basics and addresses the copyright status of e-mail messages as well as the current de facto control of e-mail by service providers independent of copyright implications. Part III suggests bailment law as an appropriate framework for the analysis of the legal status of e-mail held by a third party, and also offers comparisons to warehouse law and the law of safe deposit boxes. Part IV summarizes the current legal status of e-mail, explains why privacy arguments may be inapposite in the case of a decedent’s e-mail, and sets the stage for the recommendations in Part V. Finally, in Part VI, the Article concludes with a comparison of e-mail to paper and pen (first class) letters and their attendant ownership and intellectual property interests. The article suggests that e-mail, as a unique kind of property, has not been given sufficient legal protection as an inheritable probate asset and that legislative action could provide some much needed certainty in this developing area of law.