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.