CLIENT ALERT
By David L. Hansen and D. Deniz Aktas
Recently, the Supreme Judicial Court partially answered the thorny question of who should have access to a person’s emails after they have passed on. This client alert briefly discusses the Court’s decision in Ajemian v. Yahoo!, Inc. 478 Mass. 169 (2017) and how it may impact privacy rights after death.
In Ajemian, the Court specifically addressed whether the personal representatives of an estate could compel Yahoo to give them access to the decedent’s estate. The decedent, John Ajemian, died tragically in a bicycle accident in 2006 when he was only forty-three years old. John died intestate without a will and his siblings, Robert and Marianne Ajemian, were appointed as the administrators of John’s estate. The administrators sought to compel Yahoo to turn over John’s emails so that they could effectively administer his estate. Yahoo refused, arguing that it was prohibited from producing the emails under the federal Stored Communications Act (the “SCA”). The company also argued that the terms of service in the Yahoo user agreement allowed it to withhold the emails from the administrators.
The SCA was enacted in 1986 in an effort to update and clarify privacy rights within a rapidly changing technological landscape. In applying the SCA, courts have frequently held that the statute prevents internet providers from disclosing electronic communications, such as emails, unless a specific exception in the statute applies. In Ajemian, much of the Court’s decision turned on what Congress intended when it included a “lawful consent” exception for disclosing stored electronic communications under the SCA.
Yahoo argued that “lawful consent” should be interpreted as “actual consent” by the owner of the email account such that the owner of the account would have to provide consent. The Court disagreed. It reasoned that if Congress intended lawful consent to be limited to actual consent, it would have said so explicitly. The Court also noted that nothing in the statutory language or the legislative history of the SCA established that the statute was intended to preempt state law governing the administration of estates. Consequently, the Court concluded that the SCA does not bar Yahoo from producing emails to the administrators of the estate, because the Administrators, as representatives of the decedent, are able to give lawful consent to such disclosure.
Although the Court ruled in favor of the administrators and against Yahoo, two other points are worth noting. First, the Court remanded the case back to the probate court in order to address Yahoo’s second principal argument: that it did not have to disclose the emails because of the company’s user agreement. Second, Justice Ralph Gants wrote a forceful dissent in which he argued that a remand was unnecessary and unfair to the administrators, reasoning that future litigation would be a “heavy financial burden on the assets of [the] estate,” while the costs would be a “financial pinprick” to Yahoo. Thus, Judge Gants argued that the majority’s decision did not go far enough because it only gives a provider the ability to give an estate’s administrator access and rather than requiring that access.
Ajemian represents an interesting enquiry into both the administration of estates and an individual’s expectation of privacy. Although the case opens the door for the disclosure of email communications after death, it does not cover what a person should do if he or she wants to maintain the privacy of their emails after death. One option is to address the issue directly in your will. However, as with all other estate planning questions, you should consult your estate planning attorney for guidance.
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David L. Hansen and D. Deniz Aktas are associates at Sheehan Phinney Bass & Green PA. They are both members of the Business Litigation Group. Hansen my be reached at dhansen@sheehan.com or 617.897.5674. Aktas may be reached at daktas@sheehan.com or 617.897.5604.
This article is intended to serve as a summary of the issues outlined herein. While it may include some general guidance, it is not intended as, nor is it a substitute for, legal advice.
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