Who should have access to your email account after your death? More specifically, should your personal representative (i.e. executor) be able to provide consent for the disclosure of your private email account if you die without a will or any other indication of actual consent? This is an issue that three bills before the Joint Committee on the Judiciary seek to address (H.3083, An Act for uniform fiduciary access to digital assets, S.885, An Act relative to the privacy of a decedent’s electronic communication, and S.822, An Act relative to access to a decedent’s electronic mail accounts) .
According to the Massachusetts Supreme Judicial Court’s recent decision in Ajemian v. Yahoo!, Inc., personal representatives can lawfully consent to disclosure on behalf of a decedent.
The case arose in 2009, after 45 year old John Ajemian died in a bicycle accident. He left no will and provided no instruction on the posthumous disposition of his Yahoo email account. John’s two siblings were appointed personal representatives of his estate. In that capacity, both siblings sought access to John’s email account. Although Yahoo agreed to disclose email header information (i.e. recipient, sender, and date), it refused to provide complete access, reasoning that a federal law known as the Stored Communications Act (SCA) banned such disclosure.
The Massachusetts Appeals Court agreed with Yahoo and granted its motion for summary judgment. The Massachusetts Supreme Judicial Court heard the case on its own motion after John’s personal representatives appealed. It ultimately disagreed and vacated the appellate court’s decision. The case is now pending before the United States Supreme Court.
The primary issue before the Court is whether a court-appointed personal representative should be able to access a decedent’s email under the “lawful consent exception” of the SCA, thereby permitting a provider to voluntarily disclose the contents of a decedent’s email account.
The SCA was enacted in 1986 “to protect the privacy of users of electronic communications, while providing an avenue for law enforcement entities to compel a provider of electronic communication services to disclose the contents and records of electronic communications.” Commonwealth v. Augustine, 467 Mass. 230 (2014). It prohibits providers from knowingly divulging the contents of any communication unless a statutory exception applies. “Content” is defined by the SCA as information “concerning the substance, purport, or meaning” of a communication.
The SCA includes a “lawful consent exception” for disclosure, but is silent about personal representatives consenting on behalf of a decedent. The “lawful consent exception” permits disclosure of stored communications “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 Massachusetts Supreme Judicial Court ruled that, under the “lawful consent exception,” the personal representative had the account holder’s implied consent and did not need actual or express consent. The Court reasoned that interpreting the SCA otherwise would prevent personal representatives from accessing a decedent’s digital assets and in doing so preempt state probate and common law.
. . . 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… In like manner, a personal representative may provide consent on a decedent’s behalf to a government search of a decedent’s property…
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; bring claims on the decedent’s behalf; and vote the decedent’s stocks. 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.
Yahoo maintains that disclosure to a fiduciary in compliance with the SJC places them in violation of the SCA. Though the Massachusetts SJC interpreted the SCA to allow providers to divulge the contents of a decedent’s email account, Yahoo does not accept that a personal representative can stand in place of the user for purposes of providing the necessary consent.
Additionally, several issues remain unresolved. A number of states have passed laws similar to the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which restricts a personal representative’s access to electronic communications such as email, text messages, and social media accounts unless the original user consented in a will or other record. Yahoo contends that the SJC’s decision may lead to inconsistent judgments nationwide. Yahoo further contends, even if one of the exceptions apply, disclosure by the provider is entirely voluntary.
Read more about the policy options and the debate at this link..
This involves so much more than personal email. Many institutions can be involved.
To keep track of my digital life I have accumulated over several decades six dense password-protected pages of online account information. It includes addresses and logins for banks, brokerages, insurers, social media, web hosting, medical portals, utilities, retail vendors, three email accounts and more. I want my heirs to be able to access all of it without any sort of legal or vendor hassles.
I plan to delete accounts I no longer wish to use and summarize what’s left in a spreadsheet that I will print and leave in an easy-to-find place. It will include my computer’s password and be annotated with my wishes for the disposition of each online asset.
Should I die before completing the spreadsheet, at least there is my current disorganized list to work with and will require no one’s permission or legal authority to carry out my instructions.
I urge others to spare their heirs from frustration in a similar manner.
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