On March 26, 2018, the United States Supreme Court denied Yahoo!’s Petition for a Writ of Certiorari in the Ajemian v. Yahoo! case. You can read Yahoo!’s Petition and the briefs that were filed on the United States Supreme Court docket Web page. Note that Verizon acquired Yahoo! in 2017, and Yahoo! is now part of Oath Holdings, Inc., which is a Verizon subsidiary that also includes AOL.
So, the October 17, 2017, opinion of the Supreme Judicial Court of Massachusetts in the Ajemian v. Yahoo! case is now final with respect to its holding that “[W]e conclude that the personal representatives may provide lawful consent on the decedent’s behalf to the release of the contents of the Yahoo e-mail account.” As I’ve stated before, this is a very significant development for fiduciaries and family members struggling to obtain access to a deceased individual’s online user accounts! You can read more about the court’s opinion and the applicable provisions of the Stored Communications Act in my previous posting.
Unfortunately, it’s not the end of the case for the Ajemian family. One aspect of the case, the enforceability of Yahoo!’s Terms of Service Agreement, has been remanded to the Massachusetts Probate and Family Court for further proceedings. Chief Justice Gants wrote a separate opinion, concurring in part and dissenting in part, specifically addressing the remand regarding the Terms of Service Agreement. He wrote:
If the motion judge on remand were to rule that this provision contractually allows Yahoo to destroy e-mail messages in its possession that are owned by a user (or a personal representative of the estate of the user) after the user has filed a court action to obtain access to these messages, we would surely reverse that ruling. So why remand the case to permit that possibility?
Not only is the remand unnecessary, but it also is unfair to the plaintiffs. The additional cost of further litigation is a financial pinprick to a Web services provider such as Yahoo, but it is a heavy financial burden on the assets of an estate, even a substantial estate. The plaintiffs should not have to spend a penny more to obtain estate property in the possession of Yahoo that they need to administer the estate.
What does this all mean to fiduciaries and family members dealing with the contents of a decedent’s online accounts? If the contents of a decedent’s online account are protected by § 2702 of the Stored Communications Act, the Ajemian case tells us that the court-appointed personal representative of the decedent’s estate may provide lawful consent (within the meaning of § 2702(b)(3) of the Stored Communications Act) on the decedent’s behalf. If one of the exceptions under § 2702(b) of the Stored Communications Act applies (such as the “lawful consent” exception), then the service provider may voluntarily disclose the online account contents that are protected under the Act. The lawful consent of the deceased user, whether provided by the personal representative after death or by the user before death, does not require the service provider to divulge the contents of the decedent’s communications. That’s where state laws, such as the Revised Uniform Fiduciary Access to Digital Assets Act, come into play. RUFADAA provides a clear state law procedure for fiduciaries to follow to request access to or disclosure of online account contents and other digital assets. Under Section 16(a) of RUFADAA, if a custodian fails to comply with a request from a personal representative of a deceased user’s estate to disclose the contents of electronic communications, the personal representative may apply to the state court for an order directing the custodian to comply with the request.
As of April 2, 2018, RUFADAA has been enacted in thirty-eight states, two other states (California and Delaware) have enacted earlier or modified versions of this uniform law, and seven state legislatures plus the District of Columbia have current, active RUFADAA bills. Three states (Kentucky, Louisiana, and Massachusetts) do not have current, active RUFADAA bills. Check the Uniform Law Commission Web site for the status of RUFADAA bills and enactments.