Graphics by Anna Gray.
In our last post, we reviewed the decision (and Supreme Court non-decision) in Ajemian v. Yahoo, Inc., 478 Mass. 169 (2017). At issue was what happens to a user’s email stored with an electronic service provider if the user dies intestate. The court outcome was that the executor of an estate can access a decedent’s digital property.
However, the case has implications beyond just email messages. In the case footnotes, the probate court judge analyzed the user’s actual ownership rights in his Yahoo email. The judge’s full analysis and dicta concluded that the messages were indeed property of the estate. There are implications for startups in that a well written terms of service (TOS) ought to account for users’ intellectual property ownership rights in the context of the startup jurisdiction’s property and probate statutes.
Recap: User Dies Without Planning for His Account
The Yahoo email account at issue in Ajemian v. Yahoo! Inc. was opened by a user who unexpectedly died without a will or other instructions for the disposal of his digital assets. Yahoo provided “header information” about his account and messages to the administrators of his estate, but refused to provide the actual communications, claiming that such sharing would violate the Stored Communications Act (SCA, 18 USC Sec. 2701 et seq.) as well as the company’s terms of service. In the relevant part of this complex litigation, the estate administrators sought an order from a Massachusetts Probate Court, compelling Yahoo to provide the contents of the decedent’s email communications, in part, because they were allegedly the deceased user’s property and became property of his estate after he died.
The estate administrators argued that they could lawfully consent to the release of the email communications on the decedent’s behalf pursuant to an SCA exception. 8 U.S.C. Sec. 2702(b)(3); G. L. c. 190B, Sec. 3-709. Yahoo countered that the user’s actual consent was required by the federal statute. On appeal, the Massachusetts Supreme Judicial Court eventually sided with Ajemian’s administrators because Congress did not clearly intend to preempt state probate and common law with the SCA. 478 Mass. 169 at 177-178 .
The probate court conclusion that email is property of a decedent’s estate was not briefed or argued by the parties, so the Massachusetts Supreme Judicial Court referenced their conclusion in a footnote. That analysis stands as important judicial guidance on this issue, but is difficult to find online.
Email is the User’s Property & Becomes Probate Property in Massachusetts
Here is Judge Casey’s standing dicta opinion that email is property of the probate estate in Massachusetts:
…
The SCA prohibits Yahoo! from disclosing the contents of the decedent’s emails to the Personal Representatives. Therefore, the Court need not decide whether the emails are property of the Estate; the SCA as a Federal law would preempt any conflicting Massachusetts law. “[A]n actual conflict exists if compliance with both laws is physically impossible.” Sawash v. Suburban Welders Supply Co. Inc., 407 Mass. 311, 316 (1990). Therefore, Massachusetts’ probate laws cannot be enforced in a way that compels Yahoo! to make disclosures violating the SCA. Nonetheless, the Court will address the issue of whether emails constitute estate property in the event that it is found on appeal that the SCA does not prohibit Yahoo! from divulging the contents of the decedent’s emails.
Despite not finding any case law in Massachusetts or in other jurisdictions dealing with this issue; the Court finds that the decedent’s emails are part of the estate such that the Personal Representatives would be entitled to take possession of the emails if permitted by the SCA. “Except as otherwise provided by a decedent’s will, every personal representative has a right to, and shall take possession or control of, the decedent’s property, except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the personal representative, possession of the property will be necessary for purposes of administration.” G. L. c. 190B, § 3-709. The decedent’s ”property” “includes both real and personal property or any interest therein and means anything that may be the subject of ownership.” G. L. c. 190B, § 1-201(40). The decedent’s “property” includes both tangible and intangible property. See G. L. c. 190B, § 3-715(a)(6) (“a personal representative other than a special personal representative, acting reasonably for the benefit of the interested persons, may properly: (6) acquire or dispose of tangible and intangible personal property for cash or on credit, at public or private sale; and manage, develop, improve, exchange, change the character of, or abandon an estate asset.”).
In District Attorney for Norfolk Dist. v. Magraw. the Appeals Court expressed concern that a personal representative with a conflict of interest or a ”potential desire to suppress confidences of the decedent could be tempted to deal improperly with documents (e.g., bills, letters, diaries) of the decedent that might be revealing.” District Attorney for Norfolk Dist. v. Magraw, 34 Mass. App. Ct. 713, 719 (1993). Although Magraw does not deal directly with the issue of what constitutes probate property, it suggests that all of the decedent’s personal effects-including letters-are property of the estate subject to the personal representative’s power to acquire or dispose of the property. In the present case and for the purposes of probate, the Court does not find any meaningful distinction between a letter received through the postal service and a letter received through the internet other than the physical nature of the letters.
Emails are intangible property (if not printed off of the recipient’s email account) similar to intellectual property rights. Intellectual property includes “products such as arts, films, electronic media, video games, interactive digital media, multimedia, or design.” See G. L. c. 23A, § 64. The Court did not find any Massachusetts case law dealing with the intellectual property rights of a decedent, but probate courts in other jurisdictions have dealt with these rights in the context of the probate of a will. See Estate of Kerouac, 126 N.M. 24, 28 (1998)(determining that an estate may only possess the rights to literary property that the decedent owned at the time of death); Matter of Estate of Hellman, 511 N.Y.S.2d 485, 486 (1987) (determining ”who shall hold legal title to and control the intellectual property rights in the decedent’s works”). Given the broad range of property included in a decedent’s estate(i.e. Intellectual property, bills, letters,diaries), it follows that a recipient’s emails become estate property upon death.
…
Ajemian v. Yahoo! Inc., Mass. Prob. Ct. Docket No. 0E-0079 at pdf pp. 7-8 (Mar 10, 2016) (dicta). To reiterate, the key point for the Massachusetts probate judge here was that there was no meaningful distinction between a decedent’s paper mail and his electronic mail. The fact that the latter is electronic was not enough for this court to decide the email ceased to be estate property.
Roadmap for Other Jurisdictions
The Probate Court Judge’s opinion is not binding on Massachusetts courts and merely provides a framework for arguing the issue in other jurisdictions. This leaves a number of important questions unanswered.
State courts will have to issue opinions about their perception of Congress’s intent to preempt state probate law with the SCA, what constitutes preemption in their states, and the extent those jurisdictions permit estate administrators to take control of a decedent’s property, and several others. Professional legal research on these questions is necessary to fully address users’ email ownership rights in communications stored on a company’s servers. Irrespective of those nuances, the litigation suggests that terms of service ought to address the interaction between licensed use of a product and mechanisms to consent to third-party access, particularly in case a user dies without a will.
The Ajemian case has received national attention and is highly persuasive as the leading case on the issue of third party email account access and property ownership rights of the communications therein. Tech companies need to be mindful of Judge Casey’s analysis in drafting their TOS and dealing with similar situations.