Maureen Henry thinks her son’s online messages could help explain how he ended up dead in Lake Ontario five years ago. She’s fighting U.S. technology companies in court to access them in a case with complicated implications.
It was through a fluke web search in April, 2016, after two years of looking for her missing son, that Maureen Henry finally learned he had died.
Her query – for “black, remains, unclaimed” – led her to a listing on the Ontario Provincial Police website that sounded like it could be her son Dovi, a University of Toronto student who’d gone missing in April, 2014.
She sent in his dental records, and days later officers were on her doorstep. The remains were Dovi’s. His body, they informed her, had been pulled from Lake Ontario, near Toronto, in July, 2014. Her heart sank. The entire time she’d been looking for him, she now knew, the 23-year-old – her “handsome, intellectually gifted boy” – had been lying in a morgue.
“The whole thing has been this incredible nightmare,” Ms. Henry said recently.
But although it was a Google search that initially helped her find some closure, the big tech companies have become her biggest obstacle to figuring out what happened to him. She has requested access to his e-mails and private messages, but they argue his information cannot be shared for privacy reasons.
So she has taken her fight to court, in a case that highlights the need for more conversation about our digital lives – and what should happen to those records after we die.
Dovi’s cause of death was ruled undetermined. Ms. Henry said police told her it was a suicide. However, she has never accepted that finding, despite the fact he had previously discussed suicide. She argues that no real investigation could have been done because it took so long for his body to be identified.
In the meantime, she says she believes his e-mails and Facebook messages could hold clues to his fate.
“How do you disappear without a trace like that, and nobody sees anything?” she said. “That doesn’t make sense. There’s no way he wasn’t in contact with somebody that knew where he went.”
“There seems to be a lack of empathy, especially on the part of all those companies. They forget that we’re humans,” she said. “They talk about privacy. But in these circumstances, we’re beyond privacy.”
In October, 2017, a Superior Court judge in Ottawa issued an unprecedented order to Bell Mobility, Google Canada, Facebook and Apple to provide Ms. Henry with access to her son’s accounts. Apple and Bell complied, giving her his phone records and allowing her to change the password on his iPhone so she could get into it. Facebook has ignored the order, and Google has said it will only respond to a U.S. court order.
“Google is not opposed to providing Ms. Henry with the documents and information she is seeking and certainly has no interest in exacerbating what is no doubt a difficult and challenging time for her personally,” a legal specialist with the company wrote in a July, 2018, court filing. “However, Google will not (and in its view cannot) provide the information that Ms. Henry is seeking without the protection of a US court order.”
The company argues that producing the information otherwise would be in breach of the Stored Communications Act (SCA), U.S. legislation enacted in 1986 to create a zone of privacy for users of electronic communications services.
But Ms. Henry argues that legislation should be updated to address the realities of social media. She also says global technology companies, which are so embedded in our lives, should be subject to the laws of their users’ countries – and that her case will have broader implications for Canadians in general.
“We will have people die and not leave passwords. And there will be important things that are on those accounts that they may need to access,” she said. “And we should be able to access them with court orders from our home countries. A guy in China or India should not have to get an American court order.”
She is now working with the Electronic Frontier Foundation in the United States as she tries to navigate the U.S. justice system. She does not know if she’ll be able to secure a court order there.
Through a spokesperson, Google declined to comment on the case because the matter is before the courts.
A Facebook spokesperson similarly declined to comment on this specific case, citing the court case, but noted that the company has strict rules about privacy and access to accounts. It has established a “memorialization” process to help people pay tribute to a loved one on the platform after their death, but it will not provide access to private messages – particularly because the privacy of third parties would be at stake as well.
Daniel Nelson, an estate lawyer in Toronto, says Ms. Henry’s case is unusual in that her motion was filed ex parte – the other sides, the tech companies, were not served with notice in advance – and therefore the judge granted the order without hearing their arguments.
He says there are good reasons why passwords are protected. “What’s to stop you from posting things or masquerading as [the account holder]?” he said hypothetically.
He says a more feasible request might be copies of messages instead of account access. But he agrees with Ms. Henry that this is largely uncharted territory and that clear protocols are needed.
“What we need is legislative action here in Canada to deal with this problem, which is only going to get worse as we pour more and more of our lives online.”
Brenda McPhail, director of the privacy, technology and surveillance project for the Canadian Civil Liberties Association, says the Personal Information Protection and Electronic Documents Act (PIPEDA) does offer some guidelines. The act dictates that an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure occurs 100 years after the record was created or 20 years after the individual’s death.
But Ms. McPhail agrees this case highlights the need for more conversation.
“There are a lot of issues that are going to increasingly come up because of both the quality and quantity of information that is accumulated about us, and that we accumulate, in our lives. And we haven’t thought through what the rights issues are, what the ethical and moral issues are,” she said.
“And in a tragic case like this, some of those ethical issues are really brought to the fore. It’s a very stark question: Should a grieving mother have access to the private accounts of her beloved child?”
It’s hard to say no, she acknowledged, “but it could be that under some circumstances the answer would be no. We haven’t had the conversations about whether or not we as a society think that, posthumously, this kind of information should or shouldn’t remain private. But historically, we might well err on the side that it should.”
Mr. Nelson says “digital legacy” is something people should consider as part of their estate planning, the same way they would think about their pets or their house.
Ms. McPhail suggests that users could be required to declare their intentions when signing up for a platform, but added that it would still be important to discuss the risks and benefits of different options.
“We’ve created a really complex information ecosystem. And now that we’ve created it, we’re starting to see the extent of it and we have to come to terms with what that means for us,” she said.
“We really need to think about this more. And it’s very complex, both legally and morally.”
The Globe and Mail, August 27, 2019