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Wednesday, August 28, 2019

Digital Assets in Estate Administration (the Ajemian case)

Online and digital profiles and currency have only increased in popularity over the past decade and will likely do so for the foreseeable future.  Cash is being replaced by PayPal, Venmo, and BitCoins; the phone book has been replaced by Yelp, Facebook, and TripAdvisor; and bank and financial institutions send bills and statements through e-mail as opposed to regular mail.  While all of these technological innovations have their benefits, there is still the lingering question of what happens to your digital estate after you have passed away.  A recent Massachusetts case has analyzed a personal representative's authority to obtain access to the contents of a decedent's email and digital assets without express instructions from the decedent.

On August 10, 2006, John Ajemian passed away unexpectedly leaving no will.  His two siblings were appointed co-personal representatives (formally known as executor) of his estate.  Mr. Ajemian's siblings contacted Yahoo to request access to Mr. Ajemian's e-mail account so that they could identify the assets of his estate.  Yahoo refused to provide access to Mr. Ajemian's email account claiming that it was barred from doing so by the federal Stored Communications Act (SCA).  Additionally, Yahoo pointed out to its terms of service stating that Yahoo kept discretion to deny access to (or even delete the contents of) any individual account at any time.

Mr. Ajemian's siblings, as the co-Personal Representatives of the estate filed a Complaint in the Norfolk Probate and Family Court in September of 2009.  Yahoo filed a Motion to Dismiss the Complaint which was allowed by the Court.  This dismissal was reversed by the Massachusetts Appeals Court in 2013 and the case was remanded to the Probate Court.  The Probate Court again dismissed the Complaint by allowing Yahoo's Motion for Summary Judgment. 

Eight years after the case was filed and eleven years after Mr. Ajemian's death (yes, the legal system can move that slowly), the Massachusetts Supreme Judicial Court (SJC) agreed to hear the case and analyzed whether or not the federal Stored Communications Act prohibited Yahoo from disclosing the contents of the email account.  The federal Stored Communications Act was enacted in 1986 "to update and clarify Federal privacy protections and standards in light of dramatic changes in new computer and telecommunications technologies."  Its primary purpose was to "protect the privacy of users of electronic communications by criminalizing the unauthorized access of the contents and transactional records of stored wire and 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, 235 (2014).

Based on the foregoing purpose of the federal Stored Communications Act, the Supreme Judicial Court concluded that the SCA did not prohibit Yahoo from disclosing the contents of the Decedent's email account to the Personal Representatives.  The Supreme Judicial Court sent the case back to the Probate Court to determine whether or not Yahoo has unlimited discretion to deny the personal Representatives access to the contents of Mr. Ajemian's email account.  The Probate Court ultimately concluded that the contents of emails are part of a person's estate.

However, Yahoo bottomed out that its terms of service agreement still gave Yahoo the authority in its discretion to deny access.  This has led to an outpouring of support to both sides.  The Cyberlaw Clinic of Harvard Law School, along with many scholars and trusts and estates practitioners, have vocalized unfettered support for Mr. Ajemian's siblings.  On the other side, Facebook, Google, Dropbox, and many other corporate entities have filed amicus briefs in support of Yahoo.

The common ground that both sides seem to agree on is that the deceased digital estate holder should provide consent prior to death as to who may have access to his or her digital assets.  The corporate entities have maintained that only actual consent should satisfy the lawful consent exception under the Stored Communications Act.

This will remain an ongoing and changing area of the law.  If you have digital assets the best thing you can do is add information into your Last Will and Testament as to who should have access to your online and digital assets or an estate and trusts attorney can provide you with an authorization form.   

If you have any questions about this change in the law or estate planning in general, please feel free to contact the Law Offices of Samuel S. Reidy.

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