Life keeps us so busy writing emails that most of us haven’t considered what happens to our electronic communications when we’re dead. Can they be accessed by your family, or by a representative you designated in life? What if you leave no will and people need to know what you wanted done with your stuff?
On Monday (Oct. 16), a Massachusetts appeals court ruled in Yahoo v. Ajemian that even if permission wasn’t expressly granted, legal representatives of a deceased email-account holder can access messages in order to discern his or her intent for the estate.
The case arose in 2009 in Massachusetts probate court, after 43-year-old Robert Ajemian died in a bicycle accident. He left no will and his siblings were named his estate’s representatives by law. They sought access to emails in a Yahoo account to figure out how their brother wanted his things distributed. Yahoo argued that sharing the communications was a violation of privacy protections in the federal Stored Communications Act (SCA) of 1986, and also was in breach of the company’s own terms of service.
The panel of eight state judges that made the decision disagreed with Yahoo’s first claim, saying the SCA doesn’t bar estate administrators from accessing electronic assets to do their duties. But the panel did not make a call on whether Yahoo can block the request based on its terms of service. That matter was sent back to the lower court.
The appellate panel acknowledged that courts should “jealously” guard privacy. But its ruling also argued that there is a public interest in access under certain circumstances, like where the deceased’s intent about how to dispose of his estate was unknown. The panel concluded that the SCA permits Yahoo to divulge the contents of the e-mail account where, as here, the personal representatives demand it for the estate.
This was the first time a US court faced this precise issue, according to an amicus brief in the case filed by Harvard Law School’s Cyberlaw Clinic. It arose because the SCA didn’t anticipate the communications revolution to come, the Harvard filing explained: “Its framers 30 years ago could not imagine a world where vast quantities of valuable data are stored in the cloud.”
Written by longtime trusts- and estates-law scholars and practitioners, the amicus brief argued that barring the siblings from seeing their deceased brother’s emails was wrong. Yahoo’s reading of the law would be “condemning to purgatory the data of all those who die without expressing their post-mortem preferences,” the scholars wrote. That, they added, would contradict “the important public policy of preserving the property and value of a deceased’s estate for the benefit of the living.”
Albert Gidari, director of privacy for Stanford University Law School’s Center for Internet and Society in California, thoroughly disagrees with his colleagues on the east coast. He told Quartz (in an email, of course) that the Massachusetts decision was “nonsense” and that this question didn’t even really need resolving.
“This issue has been around since the dawn of email,” wrote Gidari. Email service providers have different policies and procedures, but all follow federal law, which prohibits the disclosure of the content of communications to anyone without user consent. Absent the clearly expressed wishes of a deceased user in a will, an account will be abandoned and should ultimately be deleted, he argues.
In Ajemian’s case, however, the family argued that administrators should access email because they needed it and were the legal representatives of the deceased, so consent was implied, and the appeals court agreed.
In Gidari’s view, the Massachusetts decision contradicts the vast majority of state law decisions and probably the wishes of the deceased. He says the issue isn’t just Ajemian’s privacy, but that of all of those with whom he communicated. “He chose in life not to share that information, and didn’t take advantage of the tools Yahoo provides to allow users to export their data and store it offline,” Gidari says. “Access to content is just gratuitous and unnecessary to fulfill the estate.”
Gidari has been working on this issue for 20 years, and points out that grieving family members are often unpleasantly surprised by their findings. They read emails seeking solace, but, he says, “in my experience, the opposite happens—users discuss personal matters like their sexual orientation or that of their other family members, maybe drug use, true feelings about another family member or friend, an indiscretion shared with a close confidante, etc. Those communications were never meant to be seen by…a personal representative.”
It is perhaps notable that Gidari works in the heart of Silicon Valley, and that Harvard, in New England, is old school, literally. The Harvard brief argued for relief for the Ajemian siblings in the public interest, saying that the SCA shouldn’t be read in the “stilted” way Yahoo advocated, especially in view of all the data relevant to estates that are now held by private tech companies.