WaPo has a story on another (see here and here) dispute over the data of a Marine killed in combat in Iraq. Quotes:
Stationed in a remote corner of Iraq, Marine Corps reservist Karl Linn’s only means of communicating with the outside world was through a computer. Several times a week, the 20-year-old combat engineer would log on and send out a batch of e-mails and update a Web site with pictures of his adventures.
For his parents in Midlothian, Va., the electronic updates were so precious that when he was killed last week in an enemy ambush, one of the first things they did was to contact the company that hosted their son’s account. They wanted to know how to access the data and preserve it.
But who owns the material is a source of intense debate.
Linn’s father, Richard, said he believes the information belongs to his son’s estate, just like his old high school papers, his sweaters and his soccer ball, and should be transferred to the next of kin. The e-mail and Web hosting company, Mailbank.com Inc., said that while it empathizes with the family’s situation, its first priority is to protect the privacy of its customers. It refuses to divulge any information about the accounts.
The issue arises because increasingly there are elements to our lives that we might think of as property, but that are legally different from tangible property in important ways – rights we have by virtue of service relationships with third parties. Generally, these rights are treated by the law the same way any contractual right is – what happens to the right on death is determined by the terms of the contract (ie, the terms of service), unless there is a statute or a judge who says different.
But the power of the internet has made it possible for us to fashion relationships that have, as this case demonstrates, powerful meaning to people who have a very high stake in the outcome. Sooner or later, contracts and the law will adapt to this new reality – but it may take a while …. Consider, for example, that just as one can under a will state what happens to one’s property, service providers could allow customers to specify in terms of service what ought to happen to data (eg, you could specify that if you die, an archival copy of your blog ought to be maintained and be disposed of in accordance with the wishes of your executor).
Finally, it’s interesting to me that this debate is in part being presented as a debate about privacy. I don’t think it ever would have occurred to me that the private letters of a person’s lifetime, stored away in a dusty trunk in an attic somewhere, ought to by default be burned instead of passed on (unless a will said they should be burned), out of a desire to protect privacy. As a society, we are already comfortable with that way of treating information. Electronic information should not be treated any differently. It’s not about privacy – we already have the tools to deal with that issue. And now, we have more tools – for example, the ability to offer very customized terms of service to address very specific needs. It’s about service providers having failed to consider this issue adequately when they were composing terms of service ….