A case in the Massachusetts Court of Appeals, Ajemian v. Yahoo!, Inc., decided on May 7, is the latest case dealing with ownership of digital assets after death.
Plaintiffs, Marianne Ajemian and Robert Ajemian, are co-administrators of their brother John Gerald Ajemian's estate. In 2002, Robert opened a Yahoo! account for John. Robert was a co-user of the account, but used it infrequently; rather, John was the primary user. John was killed in an accident in 2006. By that time, Robert had forgotten the password to the account. Plaintiffs tried to access the account to help them locate his assets and contact John's friends to inform them of his death.
However, Yahoo! refused to let them access the account and its content, claiming that it would be a breach of the Stored Communications Act (SCA), 18. U.S.C. §§ 2701 et seq. The SCA provides a cause of action against someone who "intentionally accesses without authorization a facility through which an electronic communication service is provided ... and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage."
After negotiation with Yahoo!, Plaintiffs filed a declaratory judgment action in Probate Court seeking a declaration that they were entitled to access the subscriber records of John’s email account (including subscriber information and e-mail header data, but not the e-mails themselves). Yahoo! agreed not to oppose that action, and a probate judge granted access to those records.
However, Yahoo! and the Plaintiffs did not reach agreement on the content of the account, i.e., the actual content of John’s e-mails. Accordingly, Plaintiffs brought a second declaratory judgment action in Probate Court to request access to the content of the account. Robert also brought this second action individually as a co-owner of the email account. Plaintiffs argued that the emails were the property of John’s estate and that thus its administrators should have access to the content of the account. They also argued that Robert was individually entitled to access the content of the account.
Yahoo! moved to dismiss the claim under the doctrine of res judicata, which bars relitigating a matter already adjudicated by a court. A second probate judge accepted Yahoo’s argument that the issue of the content of the e-mails could have been litigated in the first action, and was now foreclosed. The probate judge also ruled that the forum selection clause in Yahoo!’s Terms of Service (TOS) was enforceable and required any claims to be litigated in California.
Plaintiffs appealed to the Massachusetts Appeals Court, which reversed the judgment of the probate court, and remanded the case. The Appeals Court found that (1) the doctrine of res judicata did not apply because the first probate case had been limited in scope pursuant to an agreement with Yahoo!, and (2) Yahoo! had not established either that the forum selection clause had been accepted by the Plaintiffs or was enforceable. The ultimate issue in the case was, however, left undecided -- whether John’s e-mails were property of his estate. This question will be now addressed on remand by the probate judge. What factors will affect that decision?
Terms of Service
It is unlikely that the Plaintiffs would be able to claim rights arising out of Yahoo!’s Terms of Service, given that the Appeals Court’s ruling on the forum selection clause was based in part on a finding of insufficient evidence that the Plaintiffs had accepted the Yahoo! TOS. However, the TOS of email service providers may not provide much help to family members seeking access to email anyway.
This is not the first time that ownership of Yahoo! e-mail has been litigated. In 2005, Yahoo! allowed the father of a Marine killed in Iraq to access the content of his son’s email account, but only after a Michigan probate court ordered it. Yahoo! had taken the position that releasing the content without a court order would be a violation of its TOS.
In the present case, according to the Appeals Court, Yahoo! claimed no ownership in users’content under the version of the TOS effective at the time of John’s death in 2006, but also stated that the account was not transferable, and that the account would be terminated and all content deleted upon receipt of the death certificate of the user. These provisions remain in effect under Yahoo’s current terms. Yahoo! also states in its Account Help pages that under federal law it cannot release the content of electronic communications to family members but will delete accounts upon a proper request.
By way of comparison, Google published last March its policy for Gmail accounts of deceased persons, stating that “in rare cases we may be able to provide the contents of the Gmail account to an authorized representative of the deceased person” (emphasis in the original text) after “careful review.” Facebook has a policy to memorialize the account of a deceased person or to delete it at the request of a verified immediate family member.
Legislation Dealing With Digital Assets
Absent rights granted by the user’s contractual relationship with an e-mail provider, such rights might arise from statute. Right now, whether a bereaved family will be able to access the email account of the deceased could depend on where they live. The issue of ownership of digital assets has already been addressed in some states and is currently being debated by legislators in other states.
Across the border from Massachusetts, Rhode Island has already enacted a law giving administrators of an estate the right to request from electronic mail service providers access to or copies of the contents of the account of the deceased upon receipt of a written request or an order from the probate court. Another neighboring state, Connecticut, has enacted a similar law.
A bill currently pending in Virginia, H.B. 1584, addresses the issue of fiduciary access to digital assets. Fiduciaries, such as trustees or executors, would have the right to take control of digital accounts of the persons to whom they owe a fiduciary duty, unless barred to do so by the will or trust instrument, or by a court order. If such a law were in effect in Massachusetts, Yahoo!, as “custodian” of John’s digital assets, would have to either transfer the contents of John’s account to his brother and sister, or provide them access to the account within 30 days from receiving their written request.
The Ajemian case may trigger the Massachusetts legislature to propose a bill dealing with the issue of ownership of the email accounts of deceased persons, just as Oregon did following the much-publicized story of Karen Williams, who had tried unsuccessfully to access the Facebook account of her son, killed in an accident in 2005. The fact that these issues have tended to arise after the accidental death of a user helps to illustrate why a legislative solution is necessary. Even if a company’s terms of service were to allow transfer of rights in e-mail content by contract or in a will, in many cases sudden death (particularly of a younger user) may occur before such arrangements are made.
There remains, however, the question of the impact of the Stored Communications Act. If Yahoo! is correct that their refusal to turn over content is based not only on their TOS but on federal law, contrary state laws mandating such disclosure will likely be preempted.
In a case similar to the Ajemian case, last September a magistrate judge of the U.S. District Court for the Southern District of California granted Facebook’s motion to quash a subpoena compelling the social media site to provide the content of the Facebook account of a woman to her surviving family members. In In re Request for Facebook, Inc. to Produce Documents and Things, the family was seeking access in order to prove that the woman had not committed suicide. Facebook had argued that the subpoena violated the SCA by compelling the disclosure of material protected under the act. The magistrate judge held that “[t]o rule otherwise would run afoul of the “specific privacy interests that the SCA seeks to protect,” quoting the 2004 9th Circuit case of Theofel v. Farey-Jones, in which the court held that plaintiffs whose private email messages had been disclosed under an overbroad subpoena had a cause of action under the SCA.
As the Facebook case, discussed above, suggests, allowing heirs and executors to access the online accounts of deceased users could pose significant privacy issues. Opening the private e-mails of a deceased person could potentially expose information that would damage that person’s memory or the interests of others still living. Some family members may be tempted to continue updating a deceased person’s account out of love, grief, or pure foolishness. However, not allowing this access also means that bereaved family members may lose access to pictures and messages posted by the deceased user, which may be a great source of comfort for them. There is a definite tension between these familial and privacy interests.
But whose privacy? Is it the privacy or reputation of the dead person, the interests of other family members, or the privacy of a person, still alive, with whom the deceased may have interacted on a private platform, such as an email or a private message? These questions have not been clearly resolved in this particular context under United States law.
Interestingly, the personal data of the deceased is not protected by European Union (EU) law. The Article 29 Working Party (WP29), which is the EU advisory body on data protection, has addressed the issue of personal data relating to dead individuals in its Opinion 4/2007 dealing with the concept of personal data. This data is in principle not subjected to the Data Protection Directive, and thus not protected by it (see p.22). The 2012 EU Commission Proposal for a data protection Regulation does not address this issue either.
However, the WP29 also notes that the personal data of the dead sometimes is related to the personal data of a living person, and, in that case, it is protected by the EU law. The WP29 cites health data of close relatives as an example, but the person with whom the deceased communicated also have a right to privacy, and it should not stop at the death of the other party to the communication.
While the probate court will have another opportunity to decide if the Ajemian family has a right to the contents of John’s e-mail account, for the moment this issue remains unresolved in Massachusetts. Regardless of the legal determination, however, the fate of digital assets left behind by a deceased family member creates complicated policy questions that call for resolution more nuanced than that provided by general data security laws.
Marie-Andrée Weiss is a solo attorney admitted in New York, and her admission is pending in France. Her practice focuses on intellectual property, privacy, and social media law. She frequently writes on these topics and on European Union law.