Article on Digital Asset Dilemma

Matthew D. Glennon (Quinnipiac University School of Law) recently published an article entitled, A Call to Action: Why the Connecticut Legislature Should Solve the Digital Asset Dilemma, 28 Quinnipiac Prob. L.J. 48-72 (2014).  Provided below is an excerpt from the article:

With the advancement of the Internet and its capabilities, traditional scrapbooks and photo albums are being digitalized, letters are being replaced with electronic mail (“e-mail”), and life-changing announcements are being broadcast across social-media. As the digitalization of an individual’s life becomes more complex, society must address the question of what occurs in the event of that individual’s death or incapacity. In the past, tangible property such as a scrapbook or letter could undoubtedly be devised. However, the law pertaining to digital assets remains murky at best. 

This “digital asset question” is well illustrated by the harrowing saga of a Michigan family, the Ellsworths. Lance Corporal Justin Ellsworth was a Marine who was killed in action in 2004 while serving in Fallujah, Iraq. The Ellsworth family sought to create a memorial by using the e-mails Justin had sent and received while deployed, but were denied access to those e-mails by Yahoo!, per its terms-of-service.  It was only after a lengthy and public court battle that Yahoo! gave the family access to Justin’s e-mails. Although the e-mails were ultimately released, the Ellsworths’ battle illustrates a need for legislative clarification for both internet service providers and families who will seek to obtain the digital assets of their loved ones in the future.