Who owns your email account when you die?

There’s an interesting article in today’s Hindu about who gets to access your email/facebook account once you die. I think there are two questions – who gets the right to access this information that is held by your service provider, and what can be done with this information.

ACCESS
As a quick response to this question, most online service providers recognize that their ‘privacy policies’ are subject to the ‘operation of law’. See for instance what GMail’s Privacy Policy has to say on information sharing:

Google only shares personal information with other companies or individuals outside of Google if..
We have a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to (a) satisfy any applicable law, regulation, legal process or enforceable governmental request,

At the simplest level, this means that if are the deceased’s successor – say, the legatee under a will-  you will be able to access the deceased’s email account according to this policy. Gmail also has a page giving specific instructions on how to access the deceased’s email. This requires, inter alia,

5. A United States court order authorising access to the specific email account in question.

Presumably this would include orders from Indian courts that are executed through US courts.

The Hindu article suggests that one can look at email accounts as ‘assets’. My reading of GMail’s Terms of Service suggests that things may not be as simple for the following reasons:

• There is a disctinction between your email and your email account. While the email you send, and the Content of your email account is undeniably your ‘asset’ (since you hold copyrights over them), your email accounts are provided to you as a ’service’. This service may, according to Google’s terms, be stopped permanently or temporarily at Google’s sole discretion and without prior notice (Para 4.3 of TOS) . Further, “Google reserves the right to .. to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from any Service.” (Para 8.3).
• Google holds your Content not as a custodian in the sense of a bailee, but as the licensee of the copyrights in them (Para 9.4). This is a technical, legal point, but one with much legal import. As valuable as your email may be to you, if Google deletes your email account after your death, it will not be “destroying your assets” as much as simply withdrawing a service that is within its discretion. This would be the case even if Google does this during your lifetime. You are solely responsible for keeping backups of your own mail.
• This is analogous to a situation where you are the heir of a famous author who had licensed their copyrights to be used by a publishing company. You inherit the copyright in the author’s works, but not the individual copies of the books which are stocked by the publishing company .

USE
Need to check the law here – I recollect there being a difference between the ownership of the individual copy of a letter itself, versus the copyright in what was written. Thus if I received a handwritten letter from my hero and Prime Ministerial candidate Lalu Prasad Yadav, I have the right to auction that particular letter and become a millionaire. I do not, however, thereby, get a right to reproduce copies of the letter, translate adapt etc. This would infringe his copyright if such use is not saved by fair dealing. (This is a point I have to repeatedly stress, since so often ignored in mainstream media – India has one of the most extensive regime of fair dealing rights and these rights trump copyrights in all kinds of ways. Please read section 52 of the ICA)
Some interesting US case law on the issue here.

What does this have to do with email accounts? I think this distinction would vanish. If Mr. Yadav sent me an email, for instance, I might notionally have a title over that ‘copy’, but for all practical purposes that title would be useless. Printing or forwarding a copy of the email would count as reproducing it – an infringing act unless it is saved by “fair dealing” exceptions (for instance private use and research).

(CAVEAT:I’ve only looked at GMail’s Terms of Service and so this post cannot be a comment on Yahoo’s or Hotmail’s services. I don’t think their policies would be vastly different, but you should check for yourselves)

One of the features of the ‘information society’ we inhabit is that I am convinced that I am never going to die.  I cannot help this feeelng. For others, there’s a detailed article morbidly titled “Planning for your digital death” which gives you step by step instructions on how to, er, ‘plan‘ your digital death.