Court rules federal law doesn't bar e-mail provider from handing over dead man's messages to his estate

The Supreme Judicial Court today rejected Yahoo's efforts to bar a dead man's brother and sister from seeing the contents of his inbox, at least under federal law. Still at issue, though: Whether a section of Yahoo's terms of service agreement lets it withhold the e-mail simply because it feels like it.

The state's highest court ruled that while Congress did enact legislation to protect e-mail privacy in 1986, it included certain exemptions, including one that requires disclosure of e-mail with "the lawful consent" of the author or recipient.

Now, John Ajemian couldn't give consent, since he died in a bicycle crash in 2006. But his brother and sister, appointed by a probate judge to handle his estate, were able to provide "lawful consent," under decades, if not centuries, of common law, the court said. And while Congress could have overwritten that in the Stored Communications Act, it did not, the justices wrote, and so therefore, Yahoo could turn over Ajemian's e-mail.

Congress enacted the SCA against a backdrop of State probate and common law allowing personal representatives to take possession of the property of the estate. To construe lawful consent as being limited to actual consent, thereby preventing personal representatives from gaining access to a decedent's stored communications, would significantly curtail the ability of personal representatives to perform their duties under State probate and common law. Most significantly, this interpretation would result in the creation of a class of digital assets -- stored communications -- that could not be marshalled.

Moreover, since e-mail accounts often contain billing and other financial information, which was once readily available in paper form, an inability to access e-mail accounts could interfere with the management of a decedent's estate. See Banta, Inherit the Cloud: The Role of Private Contracts in Distributing or Deleting Digital Assets at Death, 83 Fordham L. Rev. 799, 811 (2014) (noting importance of access to online accounts to individuals trying to manage deceased person's estate).

Nothing in the statutory language or the legislative history of the SCA evinces a clear congressional intent to intrude upon State prerogatives with respect to personal representatives of a decedent's estate.

But after saying all that (and more), the justices concluded that while the SCA does not mean Yahoo couldn't turn over the records, it also didn't say it had to. And that brought the court to Yahoo's other argument, that its terms-of-service agreement that Ajemian had to agree to let it withhold the e-mail for any reason it chose, and that it chose not to let his brother and sister have his e-mail.

To deal with that, the justices sent the issue back to probate court, where a judge in the case had earlier ruled he just didn't have enough evidence to decide whether Ajemian ever saw the contract clause, and so rejected Yahoo's request to simply throw the case out because of the terms of service.

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    Comments

    Wow

    By on

    So much for privacy.

    Why?

    By on

    It's an interesting case, but, at least to me, seems pretty narrow because it applies only to the estates of people who die. What am I missing?

    True, but

    By on

    What if you implicated someone in a crime?
    "Mary, that was cool how you shot that guy with your gun that is buried in my back yard."

    You've never done a probate, I see

    By on

    That's okay - they are a pain and I hope you don't ever have to do one. Be sure you have all your financial info written down somewhere so you don't inflict chaos on your family, either.

    So here's what happens in real life in the real world of probate: you need to know EVERYTHING - every bank account, every credit card, etc.

    E-mail is a great way to know this.

    I was lucky that my brother had a good idea what my dad would use as a password so we could break into his e-mail and find all the various little things. Investment accounts don't show up on bank account statements - but their e-mails lead the way to finding them.

    That sort of thing.

    All my bills and banking

    By on

    All my bills and banking statements are electronic at this point. If I died tomorrow, my heirs wouldn't know where to even start finding account numbers, or even know what banks I use. There may be other estate related information in email - "Uncle Billy sent me an email saying he was giving me his mansion!!" And while that sort of thing could be subpoena'd in a nasty probate court fight, some families may want to solve all this peacefully.

    To retrieve assets, possibly

    While it's distinctly unappealing to think of my email being read when I'm dead, I can see the logic from an estate management perspective. So many financial statements are paperless these days that heirs might not even know the existence of certain accounts unless they see email referencing it. If I saved money for myself or my family, I'd want them to be able to find it all.

    Conversely, the question is

    By on

    Conversely, the question is not the "usefulness" of your heirs to access your emails, but the responsibility of a free email provider to grant heirs access to your emails.

    There's a saying, "No consideration, no contract." A company providing a free service to you is not bound by contract and can terminate your service at any time. I don't see how the heirs have a leg to stand on in this case. If the deceased did not keep an export of his emails as a backup, then he knew he could lose his emails anytime for something as simple as a server failure.

    Just because something is useful doesn't mean it should be legal.

    Please tell us

    By on

    What, exactly, is your understanding of probate law? Are you a lawyer? Have you been in charge of an estate before?

    I"m guessing the answers are "no" and "no".

    The court has a better grasp of the legal principles here than you do, certainly.

    Even when probate is not involved

    it is useful and necessary for the family of the deceased to have access to his computer and email. Not just for financial reasons, but also to notify his correspondents of his death.

    Necessary to whom? Not

    By on

    Necessary to whom? Not necessary to the email provider. It's not their problem.

    Always remember.....

    ... If you aren't paying for the service, consider the possibility that you are the product, not the customer.

    Facebook
    Google
    "Free" mail accounts

    etc.

    Paying?

    By on

    Paying for something does change some of the rules but to be clear your data is a product whether you pay for a service or not unless expressly mentioned in a terms of use agreement. No terms of use no agreement. Anyway, this seems off-topic. Couldn’t resist the bait.

    Are you kidding me?

    By on

    There could be many reasons why, and there's also principle involved.

    To quote Joseph Goebbels:

    If you have nothing to hide, you have nothing to worry about.

    Simple solution...

    By on

    If you want your executor to not have access to the emails, write that prohibition into your will.

    Doesn't matter

    By on

    A court would toss that out because it would imply hiding assets from creditors of the estate.

    Why is Yahoo!/Verizon taking

    By on

    Why is Yahoo!/Verizon taking this position, instead of granting access as a courtesy, or as a billable service?

    That said, unless the deceased was paying for premium email service, Yahoo! should win and be entitled to court costs.

    Guess that's something else to include in my will

    By on

    I wonder if Yahoo (or GMail or Hotmail etc) would accept it if I stated in my will that Person X should be allowed access to my email if I die. That would make the most sense that I should have the ability to let my next-of-kin see (or not see) my emails. I suppose I could put my login and passwords IN my will, but these days they keep changing so often, that that wouldn't really work.

    It's hard to obligate them....

    I wonder if Yahoo (or GMail or Hotmail etc) would accept it if I stated in my will that Person X should be allowed access to my email if I die.

    It is in general hard to impose an obligation on a third party in your will. You can direct your executor to dispose of your property in a specific way ("Give my 1967 Mustang to Bob"), and your executor can direct someone who is the custodian of something of yours (i.e. the bank holding your money; the storage locker company keeping your belongings) to do certain things with your property, but it's not clear that Yahoo, etc. plays an analogous role, nor that your email on their servers is your property in the same legal sense that your money in the bank is.

    Digital assets ARE property!

    By on

    I've been practicing probate law for nearly 20 years. Let me assure you that digital assets, including e-mails, Facebook postings, access to banking and credit card information, etc., etc. are property just as a house or a car are. This case applies to digital assets generally, not just e-mail and makes it clear that a personal representative's (PR) steps into the shoes of the decedent for the purpose of controlling the decedent's right to all digital property as that idea is defined under Federal law..

    The core job of a personal representative of an estate are to gather all the assets and then distribute them -- either according to the terms of the will or according to state law if there is no will. There are all sorts of reasons why a PR needs to access the deceased's on-line data. These may include:

    • closing a Facebook account
    • getting information about bank and investment accounts and turning automatic deposits or withdrawals on or off; or
    • checking for credit card debt or accessing the decedent's e-mail if there is a pending or ongoing law suit in which the decedent or the estate may be involved.

    Any attorney who has tried to help a client access a decedent's bank account or e-mails which contain critical information about business or legal issues can tell you that fighting for this information can be utterly frustrating for the lawyer and expensive for the estate, particularly where there isn't a Will which includes the power to access digital assets. Given how much our lives are on-line -- and the degree to which you cannot talk with human beings or go to offices to do business -- having these powers in your estate planning documents is critical.

    So the next time you think that you don't want to grant your attorney-in-fact or PR digital asset powers, consider what would happen if a loved one couldn't keep an eye on your accounts after your death or couldn't use your e-mail to let friends know that you died.

    Thank you

    This is exactly what my lawyer said when I was signed on as a personal rep.

    Moreover, it is a legal requirement that a PR locate and disclose any and all debts and assets before a probate can be closed. Without email access, a judge may be not be able to close the estate.

    What are the limits to this?

    Facebook postings, access to banking and credit card information, etc., etc. are property just as a house or a car are

    This stuff is interesting.

    You just made a post on UHub, which, depending upon the UHub ToS might be your digital property. Because I read the page, a copy of your posting now resides on my laptop in my browser cache. If you (or your personal representative) demanded access to my laptop because it had your property on it, I would of course tell you no. Is there any theory under which a court would compel me to grant you access to my laptop?

    A free mail provider is somewhat of a different case. But still, unless their legal team was completely asleep, I can't imagine that Yahoo's ToS actually confer upon the account holder any absolute right to access the account; if the account holder doesn't have a right to access the account, then surely the account holder's personal rep doesn't have such a right either.

    Separately again, if I send you an e-mail message, whose property is the content of the message? Mine? Yours? Both? if it's mine, then what argument can your personal rep make to compel Yahoo to allow your personal rep to see the mail message?

    It's hard to obligate them....

    I wonder if Yahoo (or GMail or Hotmail etc) would accept it if I stated in my will that Person X should be allowed access to my email if I die.

    It is in general hard to impose an obligation on a third party in your will. You can direct your executor to dispose of your property in a specific way ("Give my 1967 Mustang to Bob"), and your executor can direct someone who is the custodian of something of yours (i.e. the bank holding your money; the storage locker company keeping your belongings) to do certain things with your property, but it's not clear that Yahoo, etc. plays an analogous role, nor that your email on their servers is your property in the same legal sense that your money in the bank is.

    Email

    I am sure email inventor extraordinaire VA Shiva had mapped this all out when he was inventing tee hee hee..

    Unclaimed Property Division

    By on

    It's always good to check the state's Unclaimed Property list for yourself and any deceased relatives that may have left you an inheritance. I believe if accounts are inactive for five years, financial institutions are required to turn assets into the State Treasurer's Unclaimed Property Division for safekeeping. I had an elderly relative die, his finances were in order. Email wasn't an issue but five years later his name appeared on the list for a forgotten bank account.

    Maybe not

    But it does give me a great new idea for a tech start up: Bare-mail ©.