August 10th, 2005


The Supreme Court, the Culture of Life ... and Legal Death

A couple of months ago, there was an interesting 3-way dispute between the Army, a grieving mother, and one of the Internet email services, I forget if it was AOL or Yahoo or whatever. What it basically came down to was that her son had died in Iraq. The family wanted to be able to read his email, because it was all that they had left of him. As far as the online service was concerned, their terms of service did not allow this; without the permission of the deceased, they could not give anybody access to his private files. The family tried to claim that as his next of kin, they were now the legal owners of the files, and tried to drag the Army into it (if I remember correctly, which I might not) and the courts to try to make the online service bend.

So I've been wondering since then, off and on, why they didn't just ask the deceased? We know that there are well-documented spells and/or technologies for communicating with the dead. There are probably dozens of them, judging by the the long list of ones that we know about: the Curwen Effect, Re-Animation, the Ghoul effect, and the documented ability of many Necronomicon-trained sorcerors to possess the grave worms that have eaten their body and use them to reanimate the skin, just to name four that I can think of right off the top of my head. Sure, those techniques are all very much Forbidden Lore. And yes, the US is signatory to the International Occult Non-Proliferation Treaty; heck, President Coolidge authored the thing. But while US law forbids the use of occult lore derived from pre-human sources by unlicensed individuals, and while the treaty forbids its use by the US military as a weapon of war, as far as I know there's no reason why some licensed thaumaturge inside the US army couldn't have asked the late soldier if his mother could read his email.

Except, of course, that there's a perfectly good 1947 Supreme Court ruling that suggests that the online service wouldn't have to honor that answer: John Doe aka "Henry J. Ford" versus the Estate of Henry J. Ford, or as it's commonly known, "Ford" v Ford. When the reanimated corpse of Henry Ford showed up to contest the reading of the will, the estate counter-sued, asking the probate court to rule that Ford's death certificate was final. "Ford" argued that the law permits withdrawing death certificates in the event that the subject turned out not to be dead after all, such as when the attending physician mistakenly declares the subject legally dead and then they wake up. The probate court demurred, saying it didn't have authority to define death, so the case got kicked all the way up to the US Supreme Court.

By the time of Ford's death in 1947, worries about forbidden occult lore were really big news. (Of course, all the while Project Paperclip was still sneaking Nazi SS occult scientists into the US and providing them with new identities or white-washing their records inside US-occupied Germany. I don't care how badly the US needed to know what occult capabilities the Soviet Union might theoretically have had, the ends don't justify the means. Those guys inculcated into the US military thaumaturgical culture a tolerance for morally disgusting research on involuntary human subjects that lasted well into the 1960s. Even just talking about Sydney Gottlieb's MK-ULTRA project, the enemy within was more dangerous to Americans on American soil than the entire Communist bloc was. Is it fair to blame the CIA's coddling of Nazi occultists for MK-ULTRA? I think so. But anyway, I digress.) Because fears of foreign occult attacks and sneaky subversive occult subcultures was riding high (and, admittedly, because it was a fascinating legal topic I think), the US Supreme Court certified the case.

Anyway, the Supreme Court wisely turned down "Ford's" contention that a human being isn't really legally dead until both soul and memory are irretrievable, because it would require probate courts to prove a negative before even the simplest will could be executed. In the end, they left it to the state and local courts to establish the facts of death "in accordance with the commonly accepted usage of the term" (Justice Frankfurter, writing for the majority). Of course, that definition was so vague that it's lead to a huge number of subsequent court cases, challenging "re-animation" by every means from mouth-to-mouth to recovery from a coma after artificial life support to several occult technologies. The way the case law looks to me, by and large, if a technology derives from pre-human magical technology in any way instead of from post-Enlightenment technology, if there's even the faintest whiff of the Necronomicon or Cultes de Ghoules about how the person came to be disputing their own time of death, the courts have ruled against the deceased.

So even had some military or law enforcement spell caster been willing to step in to ask the dead soldier if his mom could read his email, I think the case law says that the online service provider wouldn't have been bound to accept that opinion. (Of course, for all I know the real reason that no licensed thaumaturge stepped in is that some of our so-called allies in the War on Terror, like Saudi Arabia, are even twitchier than we are about forbidden lore, so the US military is going out of their way not to remind our Arab partners that we maintain access to that technology.) Of course, I'm just a guy who follows the Supreme Court cases as a hobby, not an actual lawyer, so what do I know? In the meantime, it turned out to be a moot point; the family eventually did what everybody does when they need to retrieve information that a dead person password-locked, including Cantor-Fitzgerald after 9/11: they got together a bunch of friends and family of the deceased and kept making informed guesses until they cracked the password, safe in the knowledge that under the same "Ford" v Ford precedent, nobody was going to be able to come back from the grave to sue them for invasion of privacy.

P.S. Unless I lose count, this is the seventh of my faux essays from an alternate universe where H.P. Lovecraft's stories were all part of the true history of the 1920s and the 1930s, and as a species the human race learned to deal with them as just one more thing that could go wrong, just like all of the other threats to human existence that we know of in the real world. You can use the "cthulhu" tag to to find the earlier ones, including my out-of-character explanations. Feel free to "play along" in character in the comments to any of these!