On October 16, 2017, the Supreme Judicial Court of Massachusetts issued its opinion in the Ajemian v. Yahoo! case. With respect to the privacy protections of the federal Stored Communications Act, the court’s opinion states 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 email account.”
This court opinion is a very significant development for fiduciaries and family members struggling to obtain access to a deceased individual’s online user accounts!
The Stored Communications Act is Title II of the Electronic Communications Privacy Act of 1986, codified as 18 U.S.C. §§ 2701 through 2712. The Act creates privacy rights to protect the contents of certain electronic communications and files from disclosure by certain online service providers. The Act’s privacy protections have been a significant obstacle for fiduciaries and family members seeking access to the contents of a deceased individual’s online user accounts. If the Act applies, the online user account service provider is prohibited from disclosing the contents/files to the fiduciaries and family members unless an exception under § 2702(b) of the Act is met.
If one of the exceptions in the Act applies, then the service provider may voluntarily disclose the contents of the electronic communications and files protected under the Act. The “lawful consent” exception in § 2702(b)(3) states that a provider may divulge the contents of an electronic communication, “with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of remote computing service.”
The text of § 2702(b)(3) does not specifically answer the question of whether the personal representative of a deceased individual may grant “lawful consent” on behalf of the deceased individual for the service provider to divulge the account contents. And, previous court cases have not specifically answered this question. Now, the Supreme Judicial Court of Massachusetts has answered that question by saying that a personal representative of a deceased user may provide lawful consent on the deceased user’s behalf to the release of the contents of the deceased user’s email account. The Probate and Family Court in this case had previously ruled that the contents of the deceased user’s emails are property of the deceased user’s estate, and Yahoo did not challenge that ruling on appeal.
As this court opinion points out, even though the “lawful consent” exception under the Stored Communications Act can be met by a personal representative of a deceased user, that alone does not require the service provider to divulge the contents of the deceased user’s electronic communications. The Act states that the service provider may divulge the contents if an exception is met. That’s where state laws such as the Revised Uniform Fiduciary Access to Digital Act comes 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.
At last count, RUFADAA has been enacted in thirty-six states, two other states have enacted earlier or modified versions of this uniform law, and several other states are working on RUFADAA bills for enactment.
For more background information about this case and these issues, you can read the briefs filed in this case on the court Web site using this link: http://www.ma-appellatecourts.org/display_docket.php?src=party&dno=SJC-12237.