The question to be answered is what are considered “personal effects”. Is email the same as a written letter? Here is how the DOD defines personal effects:
“17–4. Personal effects
The PE are the movable personal property of the deceased or missing person.
a. PE include—
(1) Jewelry (watch, rings, bracelets, ear rings, and so forth),
(2) Personal clothing,
(3) Personal papers (letters, receipts, will, and so forth),
(4) Books and stationary items (religious publications, reference volumes, magazines, paperbacks, pens and pencils,
and so forth),
(5) Personal hygiene articles (shaving cream, razor toothbrush, cosmetics, and so forth),
(6) Electronic appliances and accessories (personal computer and related equipment, radio, televisions, compact
discs, video and audio tapes, and so forth),
(7) Tools,
(8) Household goods (furniture, major appliances, food, lawn care equipment, children’s toys, and so forth),
(9) Personal vehicles, such as automobiles and trucks.
(10) Hobby material, craft supplies, collections,
(11) Religious items, such as Bibles, Torahs, Korans, rosaries, menorahs, and so forth,
(12) sporting equipment,
(13) money,
b. PE do not include—
(1) Money on deposit with financial institutions,
(2) Investment accounts with brokerage agency,
(3) Real estate, improved or unimproved,
(4) Commercial business equipment, inventories, supplies, and vehicles,
(5) Government property issued, loaned, or leased to the deceased or missing person,
(6) Items commercially leased by the deceased or missing person,
(7) Pets, livestock, or other animals,” (Army, 2000)
Electronic communications are not included in this list as defined by Army regulation. The Army is the responsible service for processing of remains and personal effects of deceased service members. Yahoo attempted to protect LCPL Ellsworth’s privacy and failed.
“But from a legal point of view, e-mail's status is not clear cut. Even the experts can't agree. One law professor describes it as "a property interest," but not intellectual property. Another lecturer on law says absolutely it is intellectual property and is covered by copyright laws.” (Llewelyn, 2005)
It is important to consider the rights of the surviving next of kin, in this case, the parents and one can understand the emotional attachment and sense of closure that may be gained by access to letters written to them by their son, even if that communication is electronic. However, by gaining access to Ellsworth’s password, they also gained access to his entire email account. Some of the contents of the email account may have included communications that were not intended for his parents.
In this case the court should have ordered Yahoo to release only those communications that were intended to be delivered to the next of kin and not the password to the email account. If laws state that email is to be considered the same as written communication then that would be the solution. Individuals can protect their right to privacy beyond death by including it in a will.
“The legal solution, Professor Perritt says, is to write a will and bequeath the e-mail to a trustee who is instructed to destroy it.” (Llewelyn, 2005) It appears that the courts will not protect your privacy after you die.
References
Army, D. o. (2000, December 22). Care and Disposition of Remains and Disposition of Personal Effects. Army Regulation 638-2 .
Llewelyn, S. (2005, May 2). Who gets to see the email of the deceased? Christian Science Monitor , p. 12.
