Yahoo Asks Supreme Court to Determine What Happens to Our Emails After Death

What happens to our emails when we die? If Yahoo has its way, the Supreme Court will soon tell us.

Yahoo, under the name of Oath Holdings, Inc., filed a petition for a writ of certiorari with the Supreme Court in January. This came on the heels of an October 2017 decision by the Massachusetts Supreme Judicial Court in Ajemian v. Yahoo!, Inc. that held that the Electronic Communications Privacy Act “does not stand in the way of Yahoo [disclosing the contents of the decedent’s email account to the decedent’s court-appointed personal representatives].”

More specifically, Yahoo’s question for the Court is this:

“Should a court-appointed legal representative, such as an estate administrator, be able to provide lawful consent under the Electronic Communications Privacy Act … to the disclosure of private email messages stored in an online email account by a user who died without a will or any other indication of actual consent?”

The precipitating event for the Massachusetts lawsuit and eventual cert petition was the death of John Ajemian. In 2006, Ajemian died without a will or any indication of what his representative(s) should do with his email account. The probate court appointed Ajemian’s brother and sister to be joint-administrators of his estate.

As joint-administrators, they requested the disclosure of subscriber records and email headers, i.e., sender, recipient, and date information, for Ajemian’s account. Yahoo provided this information but would not allow unrestricted access to the account. This prompted the family to file a lawsuit.

The Massachusetts court ruled that under the Electronic Communications Privacy Act, court appointed administrators can consent to the disclosure of a decedent’s email account because they are the decedent’s legal representatives.

The Electronic Communications Privacy Act “protects … electronic communications while those communications are being made, are in transit, and when stored on computers. The Act applies to email … and data stored electronically.” The act prevents the disclosure of private emails unless lawful consent is given or an exception is applicable.

Yahoo maintains that no exception applies to the Ajemian case, and, as he is not alive to give lawful consent, Yahoo cannot disclose Ajemian’s emails.

In its opinion, the Massachusetts court referred to state probate and common law to rule that Ajemian’s administrators could exercise lawful control over his email account. The court wrote:

“Personal representatives provide consent lawfully on a decedent’s behalf in a variety of circumstances under both Federal and common law … 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.”

The court found nothing in the act itself that precludes administrators from providing consent; the court maintained that Congress intended the act to encompass some forms of “implicit consent.” As such, the court found the act to not be a constraint on Yahoo’s ability to disclose Ajemien’s emails.

In its petition, Yahoo cites several reasons for the Supreme Court to take up the issue that include:

  • There is a “universal trend of other courts that have protected email content against third-party access” and
  • The court’s ruling “would threaten and undermine the important federal policy in favor of email privacy.”

The Supreme Court has not yet decided if it will take up the issue, but if it does not, what will be the fate of our emails after death? The Massachusetts Supreme Judicial Court did not determine if Yahoo had to disclose Ajemien’s emails; it only ruled that the Act did not stand in Yahoo’s way, so that issue remains undetermined.

Orin Kerr, a research professor at the George Washington University Law School, has some interesting “tentative thoughts” on the matter. In an opinion piece Kerr authored for the Washington Post, he states preemption is not necessarily an issue – the crux of the matter could be statutory interpretation. The act states that disclosure is allowed “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.” Kerr points out that it is not clear if estate administrators count as one of those persons.

Additionally, Kerr asks what happens if an account holder dies with a will explicitly stating that he does not want his administrator to have access to his emails? Is this something the law would want to honor?

Regardless of the outcome, this issue is one to be watched for its possible implications for state probate proceedings.

UPDATE:  On Monday, March 26, the Supreme Court denied Yahoo's certiorari petition.