Taking passwords to the grave

Talcott, 69, a friend of beatnik Neal Cassady, apparently took his password to the grave.

It's a vexing, and increasingly common problem for families mourning the loss of loved ones. As more and more people move their lives, address books, calendars, financial information, online, they are taking a risk that some information formerly filed away in folders and desks might never be recovered. That is, unless they share their passwords, which poses security threats.

"He did not keep a hard copy address book. I think everything was online," said Talcott's daughter, Julie Talcott-Fuller. "There were people he knew that I haven't been able to contact. It's been very hard."

"Yahoo (his e-mail provider) said it wouldn't give out the information due to privacy laws, but my dad is dead so I don't understand that," she said.

But it's not a question of privacy rights so much as property rights, said Marc Rotenberg, executive director of the Electronic Privacy Information Center.

"The so-called 'Tort of Privacy' expires upon death, but property interests don't," he said. "Private e-mails are a new category. It's not immediately clear how to treat them, but it's a form of digital property."

Attorneys advising clients on estate planning should ask them to determine who they want to have access to their computers when they die, Rotenberg said.

That's exactly what San Francisco-based estate planning attorney Michael Blacksburg does. "I advise clients to put all their passwords to things online in an estate planning document," he said.

Blacksburg also asks his clients what they want to have happen with their electronic media, like music in iTunes and photos in Shutterfly.

"The older generation is just getting in the habit of using computers," Blacksburg said. This problem will become more acute in coming years as more and more people become computer savvy, he added.

The situation poses a dilemma for e-mail providers that are pilloried by privacy rights advocates at the mere suggestion of sensitive data being exposed, at the same time they are expected to hand over the digital keys to family members when a customer dies.

Last year, Yahoo was forced to provide access to the e-mail of a U.S. Marine killed in Iraq to his father, who got a court order in the matter.

"The commitment we've made to every person who signs up for a Yahoo Mail account is to treat their e-mail as a private communication and to treat the content of their messages as confidential," said Yahoo spokeswoman Karen Mahon.

Beyond acknowledging that Yahoo complies with court orders, Mahon declined to discuss Yahoo's requirements for providing family members access to the e-mail accounts of their deceased loved ones.

Google will provide access to a deceased Gmail user's account if the person seeking it provides a copy of the death certificate and a copy of a document giving the person power of attorney over the e-mail account, said a Google spokeswoman.

America Online follows the same policy, according to spokesman Andrew Weinstein.

"In terms of tips for estate planning, it's much easier if a family member already has the password, or a person could entrust their key passwords (for online access/banking/stock accounts, etc.) to a trusted friend or attorney," Weinstein wrote in an e-mail. He said the situation comes up "fairly regularly."

And "Microsoft's policy allows next of kin to gain access to the content of the Windows Live Mail account (burned on CD/floppy disk) of the deceased upon proving their relationship," a Microsoft spokesman wrote in an e-mail. "We have tried to institute a policy that is very focused on privacy, but at the same time honors the request of bereaved family members going through a difficult time."

Talcott didn't leave a will, unless it is stored on his computer somewhere, so his family is still working out who will be his executor, his daughter said. Once that is established, Talcott-Fuller said she will approach Yahoo again for access to his e-mails.

However, an electronic will is not necessarily valid, according to Ronald Cooley, an estate planning attorney in the retirement enclave of Sun City, Ariz.

"A will in a computer is no good. It has to be printed out, signed and witnessed" to be valid in California and Arizona, Cooley said. "You can't leave it in a Word document on your computer."

Although his password remains a mystery, Talcott, who worked as a mainframe programmer when he wasn't traveling around Europe, acknowledged the importance of data retention for posterity in a poem titled "Eating Salad With My Fingers:"

"Our office romance is over because I am no longer employed," Talcott wrote. "Where is our offsite backup tape?"