Who can access your e-mails after you die?

|The Volokh Conspiracy |

Here's an interesting new case from Massachusetts, Ajemian v. Yahoo!, Inc. The question: Who can access your e-mails after you die?

The case arose after John Ajemian died from a cycling accident. He didn't have a will, and his siblings were appointed personal representatives of his estate. Ajemian's siblings knew that their brother had kept a personal Yahoo e-mail account for several years. They wanted to access the account's contents. Yahoo refused to disclose them, however, citing the ban on disclosure imposed by the federal law known as the Stored Communications Act. The act basically says that email providers can't disclose private emails unless a specific exception applies. According to Yahoo, no exception applied. Ajemian was dead, and he wasn't alive to consent to the disclosure of his emails. As a result, Yahoo argued, they couldn't disclose the emails.

The Massachusetts Supreme Judicial Court, the state's highest court, disagreed. According to the court, the key was that there is a state probate and common law rule that personal representatives can exercise control over a decedent's property:

Personal representatives provide consent lawfully on a decedent's behalf in a variety of circumstances under both Federal and common law. For example, a personal representative may provide consent to the disclosure of a decedent's health information pursuant to the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. §§ 1320d et seq. (HIPAA). See 45 C.F.R. § 164.502. In like manner, a personal representative may provide consent on a decedent's behalf to a government search of a decedent's property. See United States v. Hunyady, 409 F.3d 297, 304 (6th Cir.), cert. denied, 546 U.S. 1067 (2005).

At common law, a personal representative also may provide consent on a decedent's behalf to the waiver of a number of rights, including the attorney-client, physician-patient, and psychotherapist-patient privilege.Under the Uniform Probate Code, a personal representative may sell a decedent's property, Uniform Probate Code § 3-715(23); bring claims on the decedent's behalf, id. at § 3-715(22); and vote the decedent's stocks, id. at § 3-715(12). Thus, a construction of lawful consent that allows personal representatives to accede to the release of a decedent's stored communications accords with the broad authority of a lawfully appointed personal representative to act on behalf of a decedent.

In light of that rule, the next question was whether there was any signal in the statute that rejected this traditional understanding. According to the court, there was not: "Nothing in the language of the 'lawful consent' exception evinces a clear congressional intent to preempt State probate and common law allowing personal representatives to provide consent on behalf of a decedent." From the opinion:

Congress . . . intended lawful consent to encompass certain forms of implicit consent, such as those that arise from a course of dealing. At the very least, this suggests that Congress did not intend to place stringent limitations on lawful consent even for living users. In sum, we discern nothing in the legislative history of the SCA to indicate a clear intent by Congress to limit lawful consent to "actual consent," such that it could thereby intrude upon State probate and common law.

Absent such clear congressional intent, "we … have a duty to accept the reading [of the statute] that disfavors preemption." See Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005). Because we must presume, then, that Congress did not intend the SCA to preempt such State laws, we 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 a result, Yahoo could disclose the communications to the siblings under the consent exception to non-disclosure. (The court doesn't get into whether Yahoo had to disclose the communications in the circumstances; it only ruled that the Stored Communications Act didn't bar the disclosure.)

I don't know if I agree with the new decision. Here are three tentative thoughts on the opinion.

1) I'm not sure this is really an issue of preemption. The consent exception states that disclosure is permitted "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." I would think the issue should just be one of statutory interpretation: Does the personal representative of the estate count as the "originator," "addressee," "intended recipient," or "subscriber" of the decedent's e-mail account? Maybe so or maybe not. But I'm not sure it's a question of preemption.

2) What happens if an account holder makes clear, either in his will or in a communication to his email provider, that he does not want his personal representative to have access to his emails after his death? I would think the law would want to honor that wish, but I'm not totally sure if it does under the court's interpretation.

3) This is another issue that the drafters of the Stored Communications Act just didn't think about. I remember first wondering about this question around 1999, when I was working on a case involving the access to emails of two criminal suspects who had died. It wasn't clear how the statute was supposed to work. Did the statutory rights extinguish? Did anyone retain the access and control rights of the person who had died?

In today's world, in which we leave behind a lot of emails and other contents in the cloud after we're gone, the answers matter.