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Volume 4 Number 7 March 24, 2006 |
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Last rights? Do we have ethical obligations to the dead? Whether the dead have rights -- especially rights that exist in this realm and create corresponding obligations on us -- may seem like a strange and perhaps morbid topic, but it does speak to certain beliefs we have. It also relates directly to a situation that came up a little over a year ago, and is something I've been turning around in the back of my mind ever since. In that case, a young man had died, and his parents requested access to all his email from Yahoo, which he had been using as an online email provider. Yahoo refused, claiming that the young man's right to privacy, as guaranteed by Yahoo's privacy policy, prevented them from turning the emails over to anyone else. It's interesting to note, before proceeding, that such concerns didn't prevent Yahoo from ignoring the privacy rights of several Chinese citizens who were jailed after Yahoo turned over their emails to the Chinese regime. But, that's another column altogether. I should also note that Yahoo eventually did turn the email over to the family, but only after a several-month battle that resulted in the family's getting a court order. So, the case was resolved, at least to the family's satisfaction, but it still left open the question of whether dead people have rights. Yahoo could have used any of several other rationales if it was reluctant to turn over the emails to the family. It could have argued that, whatever the young man's rights in the case, the family had no right to obtain them. Or, it could have argued over the nature of email communication and whether it was something that would pass from a person to his estate or his family. But it instead argued based on the alleged right that the young man had, not only in life, but in death. And, that's a different story altogether. Ethicists usually cringe whenever non-ethicists start talking about "rights," and that's because they use most of the language and terms in a very imprecise way. And, as anyone knows, that's going to lead to false or unacceptable conclusions. At the very beginning of the discussion, we need to decide what sort of entity serves as the holder of a right. To short-circuit a very long discussion, let's just says that the right-holder needs to be a person. We don't think of rocks as having rights. Nor do we think of sand as having rights. And this underlying requirement illustrates why corporations spent so much money and political capital in the mid-to-late 19th century in the effort to get themselves designated as "persons." Once that happened, corporations, as fictional persons, acquired all sorts of rights they didn't have as mere commercial syndicates. However, corporations aside, it's important to decide what sort of entity qualifies as being a person, and, while there are many possible answers to that question, one criterion that would seem to be primary is that the entity would need to be alive. As a living person you have numerous rights. Once you pass into the great beyond, those rights are generally seen to cease to exist. Your right to vote, for example, ceases at death -- which is probably why people become so exercised when the dead continue to vote in alarming numbers in some jurisdictions. It would be easy simply to say that your right to vote ceases to exist because, as an ex-person you no longer have the ability to pull the lever in the voting booth. That's not entirely true, because even if a living voter loses the physical ability to go through the mechanics, we don't see that as obliterating the right, although the person may not be able to exercise the right. But once the right-holder ceases to exist, then the right ceases to exist also. What about those cases in which we go to great lengths to honor the wishes of the dead? Courts devote a lot of time and money in ensuring that the estates of dead people are divided up properly according to that person's last known wishes. Isn't that a recognition that the person had some right to have that property divided in that manner? You could see it that way, but you'd have to first build a strong case that the dead do have rights, and I'm not sure that's an easy task. However, there are several other ways to look at it. First, the beneficiaries of the will, by virtue of the bequests made while the person was living, have themselves acquired certain rights -- along with other parties, such as ignored spouses or children and, most importantly, creditors -- and that the court proceedings ensure that the rights of these living persons or corporate creditor "persons" are safeguarded. And, in fact, most wills specifically exclude bequests to any possible beneficiaries who may have died before, or shortly after, the testator. Another way of looking at it would be to argue that society has a selfish interest in ensuring that a person's final wishes are honored after his death. That makes the rest of us feel better about what's going to happen to our stuff after we die. Once we're dead, I assume, we don't really care, but our lives prior to that point will generally go better if we have at least the illusion that things will proceed as we want after we're gone. Some people also place a great deal of weight on deathbed requests from the soon-to-be decedent or promises made to that person before his death. People will often express that in terms of some "obligation" to fulfill the promise, therefore assuming a corresponding "right" on the part of the deceased that the obligation be fulfilled. However, fulfilling deathbed requests or deathbed promises is better explained by sentimentality, supererogatory behavior, or, as in the case of probating wills, the fact that the living feel better when they have some hope their last requests will be honored -- whether or not they will care once they've crossed over. ("Supererogatory," for those who don't know, is used to refer to actions that exceed the minimum demands of ethics. If I were to deprive myself in order to give 50 percent of my salary to the poor -- assuming no one else had a claim on the money -- it would be considered supererogatory, as even the most generous theory of an obligation to aid others wouldn't require that kind of sacrifice.) So, I think that Yahoo was off the mark in arguing this case on the young man's supposed right to be protected by Yahoo's idiosyncratic and apparently sporadically observed privacy rules. It might have argued that, although the deceased no longer had any rights, neither did the family -- that access to the emails was an agreement between the young man and Yahoo, and wasn't something that was transferable to others upon his death. That might have had more traction. Another argument might have centered on the nature of email, which exists only in the form of a certain arrangements of 1's and 0's in company data banks, and whether that certain arrangement of digits is something subject to claims by relatives of dead people. That's a much more complicated argument, but its contemplation would have at least shed some light on other important issues involving electronic intellectual property. In the end, Yahoo chose the least defensible argument -- the claim that the dead have rights and it muddied instead of clarified the situation. As a final note: For families contemplating invading a loved one's emails, I'll issue a word of caution. This could be a classic case of "be careful what you ask for." An awful lot of people have a side to them, or facet of their lives, that their families don't know about -- and would prefer not to know. Poking around in someone's private communication posthumously could open new wounds from emails that the family mistakenly thought would bring "closure." |
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© Copyright 2006 Carlton Vogt |