Ottawa mother's quest for her late son's passwords an uncharted legal road, say experts

This story was originally published on Nov. 24, 2019.

Maureen Henry believes the answers to her son's death may be found in his social media and email accounts.

"I'm not interested in what kind of life he was living, or who he was interacting with. All I want to know is exactly what happened to Dovi Henry, so that I can have some peace," the Ottawa mother told Out in the Open host Piya Chattopadhyay.

Dovi Henry, 23, was attending the University of Toronto in 2014. He vanished that spring. His body was found two months later at a marina near Ontario Place.

But it wasn't until two years later that Maureen Henry tracked down the body, which had been in a morgue, after an online search for "unclaimed black remains."

Toronto police said an investigation into Dovi's death found no evidence of foul play. The coroner's office advised that the results of an autopsy were "inconclusive."  

Henry says that privately, police told her they believed it was a suicide.

While she had finally found her son, answers about his death — and closure — were still out of reach.   

With the investigation closed, Henry looked to Dovi's digital footprint for potential clues.

"There needs to be an actual process for families, in my situation, to access their relatives' digital accounts."

But two full years after a court ordered several companies to hand over access to those accounts, she's still locked in a complex legal battle to retrieve them in the midst of an ethical debate about what to do when so much of people's lives — and possibly information about their deaths — lives on the servers of a company in another country.

No clear legal road map

The legal road map for retrieving a deceased loved one's accounts remains murky, according to Toronto-based lawyer Gerald Chan — and it's complicated further when that data may be held by a company based in another country.

"It sounds technical, but it matters legally, because you can only get a court order compelling a person or corporation to produce data that's within [the court's] possession or control," he said.

It could become even more complex if that data is held in a third location, subject to yet another set of laws.

A 2017 Ottawa court decision provided Henry a partial victory: Bell Mobility, Facebook, Google and Apple were ordered to grant her full access to Dovi's accounts, including phone call records and passwords.

Bell and Apple complied. Henry contacted friends and other contacts obtained from Dovi's phone records, but says she didn't recover much useful information.

Henry says ahead of the judge's decision, Google offered to give her the headers of Dovi's emails, which include information like the names of people who corresponded with him, if she agreed to drop the court case — but not the content of the emails themselves. She refused.

Google declined to comment, stating that the case "is the subject of an ongoing litigation involving Google LLC, Google Canada Corporation and Ms. Henry."

Google and Facebook said they can only comply with an order from an American court.

Two provincial decisions in January 2018 presented conflicting views on whether a Canadian court has any leverage outside the country.

The Court of Appeal in British Columbia ruled that American company Craigslist could be ordered to hand over a user's data even though it was stored in the U.S., because it has a "virtual presence" in the province.

In Newfoundland, however, a lower court ruled that such an order could be unenforceable outside Canada.

On advice from the Electronic Frontier Foundation, an American digital rights advocacy group, Henry reached out to a probate lawyer and is seeking a court order in California, where Facebook and Google are based.

"Although cases like this are heartbreaking, we generally can't turn over private messages on Facebook without affecting other people's privacy. In a private conversation between two people, we assume that both people intended the messages to remain private," Facebook told CBC Radio in an email.

"Even where family members are requesting private messages, laws may prevent us from doing so," it continued.

Tech companies absent for ruling

Toronto estate lawyer Daniel Nelson noted the decision was ex parte, meaning none of the tech companies were present to make their own case.

If the companies were ordered to appear in court, he said, they may have offered copies of the material in Dovi's accounts instead.

In 2004, Yahoo gave the parents of Justin Ellsworth, a U.S. Marine who died in Iraq, a CD with 10,000 pages of messages from his account, instead of his passwords.

Henry said Facebook only offered to make her the "legacy contact" for Dovi's account, which would give her limited access to turn it into a digital memorial. That wouldn't allow her to log in to the account or access his private messages.

Nelson speculated that a legal decision to give someone's password posthumously "opens up all kinds of ramifications" down the line.

"What would happen if you got my username and password, and started logging in on Twitter or Facebook, and posting on my behalf?" 

Nelson pointed to draft legislation, adopted by the Canadian Uniform Law Commission in 2016, that offers guidelines on how to transfer one's digital assets to a guardian or trustee after their death, "while respecting the privacy and intention of the account holder."

So far, no provinces have adopted the act's recommendations, he says.

The ethical issue

Ann Cavoukian, former Ontario information and privacy commissioner, sympathizes with Henry's situation, but says users may have sensitive information they wanted to keep private — even from their loved ones.

She said digital platforms could make it mandatory for new users to name a contact for after they die, rather than it being optional, like Facebook's legacy option.

Cavoukian noted that technology often moves more quickly than laws can keep up, thanks in part to the morass of questions about privacy the law  must wade through.

"Privacy forms the foundation of our freedom. You cannot have free and open societies without a solid foundation of privacy. And that means respecting the wishes of the individual, even if it's not what you want," she said.

Right now, however, Henry just wants answers — and closure.

"What we got back from the morgue was a big, gigantic bag of bones," she said.

"There's no reprieve from the grief. All those emotions, like, stay with you. ... And you work, at least I work, to not be taken over by the sadness."

Written by Jonathan Ore. Interview with Maureen Henry produced by Eric Van. This story appears in the Out in the Open episode DIY Justice.