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FC: Here's what happens to email and web pages after someone dies
From: Declan McCullagh <declan () well com>
Date: Sat, 17 Feb 2001 19:15:59 -0500


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Date: Fri, 16 Feb 2001 14:24:20 -0500
From: "James Maule" <maule () law villanova edu>
To: <declan () well com>
Subject: Re: FC: What happens to someone's email and web pages when
        they die?

I haven't figured out how to post to the list but there are some things to consider. If you can post this up, that would be great as I think this may be of interest to more folks than just the person posting the question. (Good question, by the way).

1. If the person has password-protected their information and haven't given the passwords out, that should be a sign that they don't want anyone rifling through (even to figure out why someone committed suicide).

2. If the police wish to examine the information, either they get consent from the estate (which is what one assumes the estate of a murder victim would do, i.e., consent to a search) or proceed as they would had the person been alive, i.e., get a warrant or try to persuade the executor to give consent.

3. If there is a way to access the address book (i.e., it is not password protected), informing people of the person's death is a nice courtesy. Using an autoresponder seems a bit tackier than being affirmative (and timely). This is not so much a legal question but one for the etiquette experts.

4. Financial accounts (e.g., with banks and brokerages) usually are treated in accordance with the contract, which should permit the estate's representative to gain access via the bank, brokerage, etc.

5. The content of the web page is property of the decedent, and thus of the estate. The executor or administrator needs to take steps to secure the content, arrange for its continued publication, distribute it to a beneficiary, etc etc. If the web page is part of a business (sole proprietorship), there may be business continuation or other agreements affecting the web page.

6. Letting the account "go away" by not paying the bills isn't the best practice. With magazine subscriptions, the practice is to send written notice of the subscriber's death, ask for cessation of the subscription, and request any available refund of prepaid subscriptions. Leaving the account open for a dead person makes it riskier a hacker would co-opt the account without anyone noticing, at least for the few months it takes for the billing and repeat billing notices to trigger closing of the account by the provider.

7. There is case law on the "destroy my love letters" will provision in terms of the extent to which it must be followed. Some courts do not permit testators to direct destruction of property. It makes sense to treat digital correspondence (love letters or otherwise) in the same vein. Again, it makes sense to look at the documents. If the will directs deletion of files, most executors will do so. But suppose one file is a beta version of a new operating system with the potential to leave Microsoft in its dust? The executor (assuming she can figure it out) would be acting dangerously if she destroyed that file. And a beneficiary could object to destruction of any files (after all, the digital files of a celebrity have market value), and in some jurisdictions would succeed in preventing the destruction. (It depends on the state, so research into state law would be necessary).

There are just a few thoughts. Hope they are helpful


Jim Maule
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule () law villanova edu
http://vls.law.vill.edu/prof/maule
President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com)
Publisher, JEMBook Publishing Co. (www.jembook.com)
Maule Family Archivist & Genealogist (www.maulefamily.com)

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Date: Fri, 16 Feb 2001 11:15:34 -0500 (EST)
From: Charles Platt <cp () panix com>
To: Declan McCullagh <declan () well com>
Cc: <politech () politechbot com>, <kcooper () genuity net>
Subject: Re: FC: What happens to someone's email and web pages when they die?
In-Reply-To: <5.0.2.1.0.20010216101541.02011a60 () mail well com>

There are simple answers to the postmortem web-page problem.

Ideally the page owner should set up a perpetual trust (which is legal
only in some states), which will own the domain name and maintain the site
indefinitely. However, this will cost money, not just for site
maintenance, site fees, and domain renewal fees, but for administration of
the trust. You might have to sink as much as $50,000 into the plan.

Another, easier option is to establish a corporation, or even a
partnership, as an independent business entity that will own the site.
After death of the site author, the business entity will continue to run
the site. The advantage is that this is cheap. The disadvantage is that
you will be relying on the continuing goodwill of people who continue to
live after you die. In practice I would guess that after a few years, they
are likely to get tired of maintaining your site, much as people get tired
of putting fresh flowers on grave stones. There is no legal way I know of,
to compel them to do what you want after you are dead.

Copyright is not a problem either way, since you can "sell" all the
contents of your site to a trust, corporation, or partnership, as "work
for hire."

One thing is for sure: If you don't take steps to perpetuate your site
after you die, the site will not be maintained as you would like it to be.
On the other hand, if you're dead, why should you care?

--Charles Platt

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To: declan () well com
Date: Fri, 16 Feb 2001 11:11:45 -0500
Subject: Re: FC: What happens to someone's email and web pages when they die?
Message-ID: <20010216.111200.-456045.6.rvhead () juno com>

From what I remember of my Moot Court problem, "Privacy rights" die with
the decedent.

In most states so does (or did) the right to profit from one's likeness.

An awful lot of litigation came out of the Sixth Circuit addressing this
issue - It seems a certain truck driver from Tupelo had a residence in
Memphis when he departed this mortal coil, and his heirs and
would-be-heirs did battle over who had the rights to use his picture.

The Sixth Circuit followed Tennessee law, which held that Lisa Marie
Presley could keep interlopers from using her father's unlicensed
likeness for commercial purposes.

If I recall correctly, that was the minority viewpoint, in 1985.

************




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