A June 1, 2012, article by Jessica Hopper posted on MSNBC’s Rock Center, describes a Wisconsin family’s attempts to gain access to their deceased son’s online accounts. As I mention in previous postings, it can be a very time–consuming, expensive, and frustrating process.
The first problem is that most major Web services won’t reveal or reset the password of an incapacitated or deceased person. The second problem is that the Terms of Service contracts at some major Web services prohibit you from allowing anyone else to access your account, which may prevent even a court–appointed and duly–authorized fiduciary from fully accessing an incapacitated or deceased person’s account. And, if you aren’t authorized to access the incapacitated or deceased person’s account, you may be violating a state or federal criminal law regarding unauthorized access to computers or computer systems. Third, the Terms of Service contracts for some major Web services, like the one for Yahoo!, says that your account terminates at death. Finally, the Terms of Service contracts for most major Web services say that the online account is not transferrable or only transferrable with permission.
In this Wisconsin family’s situation, it appears that they have been struggling with access to their deceased son’s Facebook account and Google Gmail account. I have not seen copies of any of the pleadings filed in this case or the orders signed by Judge Joseph D. Boles of the Pierce County Circuit Court, so I’m not sure if the family requested a copy of “the contents” of these online accounts or whether they requested full access to “the account itself.” I’ve previously explained the difference between trying to obtain “the contents” versus full access to “the account itself.” The article notes that Facebook has received a copy of the Wisconsin Circuit Court’s order but has not responded yet.
In this situation, I don’t know whether Facebook or Google were made parties to the court proceedings (served with notice of the pending action and given an opportunity to be heard by the court) before the orders were issued. This may be an important element in this case. My understanding is that, in the past, Yahoo! has asserted that a general court order, without naming Yahoo! as a party to the court proceedings, is not sufficient for them to turn over the e–mail account contents. For example, in the Michigan case In re Ellsworth, No. 2005–296, 651–DE (Mich. Prob. Ct. 2005), a family made Yahoo! a party to the court proceeding, gave Yahoo! notice of the proceeding, and a Yahoo! representative appeared at the hearing. Following the order in the Ellsworth case, Yahoo! turned over the contents of the deceased user’s e–mail account to the family.
It will be interesting to see how Facebook and Google respond to this Wisconsin family’s requests and the court’s orders.