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SJC-12237
MARIANNE AJEMIAN, coadministrator,1 & another2 vs. YAHOO!, INC.
Norfolk. March 9, 2017. - October 16, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.3
Internet. Personal Property, Ownership. Executor and
Administrator, Recovery of assets, Contracts. Contract,
Service contract. Agency, What constitutes. Statute,
Construction. Consent. Federal Preemption.
Complaint filed in the Norfolk Division of the Probate and
Family Court Department on September 15, 2009.
Following review by the Appeals Court, 83 Mass. App. Ct.
565 (2013), the case was heard by John D. Casey, J., on motions
for summary judgment.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Robert L. Kirby, Jr. (Thomas E. Kenney also present) for
the plaintiffs.
1
Of the estate of John G. Ajemian.
2
Robert Ajemian, individually and as coadministrator of the
estate of John G. Ajemian.
3
Justice Hines participated in the deliberation on this
case prior to her retirement.
2
Marc J. Zwillinger (Jeffrey G. Landis also present) for the
defendant.
Mason Kortz, for Naomi Cahn & others, amici curiae,
submitted a brief.
James R. McCullagh & Ryan T. Mrazik, of Washington, &
Joseph Aronson, for NetChoice & another, amici curiae, submitted
a brief.
LENK, J. This case concerns access sought by the personal
representatives of an estate to a decedent's electronic mail (e-
mail) account. Such an account is a form of property often
referred to as a "digital asset." On August 10, 2006, forty-
three year old John Ajemian died in a bicycle accident; he had
no will. He left behind a Yahoo!, Inc. (Yahoo), e-mail account
that he and his brother, Robert Ajemian,4 had opened four years
earlier; he left no instructions regarding treatment of the
account. Robert and Marianne Ajemian, John's siblings,
subsequently were appointed as personal representatives of their
brother's estate. In that capacity, they sought access to the
contents of the e-mail account. While providing certain
descriptive information, Yahoo declined to provide access to the
account, claiming that it was prohibited from doing so by
certain requirements of the Stored Communications Act (SCA), 18
U.S.C. §§ 2701 et seq. Yahoo also maintained that the terms of
service governing the e-mail account provided it with discretion
to reject the personal representatives' request. The siblings
4
Because they share a last name, we refer to the members of
the Ajemian family by their first names.
3
commenced an action in the Probate and Family Court challenging
Yahoo's refusal, and a judge of that court allowed Yahoo's
motion for summary judgment on the ground that the requested
disclosure was prohibited by the SCA. This appeal followed.
We are called upon to determine whether the SCA prohibits
Yahoo from voluntarily disclosing the contents of the e-mail
account to the personal representatives of the decedent's
estate. We conclude that the SCA does not prohibit such
disclosure. Rather, it permits Yahoo to divulge the contents of
the e-mail account where, as here, the personal representatives
lawfully consent to disclosure on the decedent's behalf.
Accordingly, summary judgment for Yahoo on this basis should not
have been allowed.
In its motion for summary judgment, Yahoo argued also that
it was entitled to judgment as a matter of law on the basis of
the terms of service agreement, claiming thereby to have
discretion to decline the requested access. Noting that
material issues of fact pertinent to the enforceability of the
contract remained in dispute, the judge properly declined to
enter summary judgment for either party on that basis.
Accordingly, the judgment must be vacated and set aside, and the
matter remanded to the Probate and Family Court for further
4
proceedings.5
1. Background. In reviewing the allowance of a motion for
summary judgment, "we 'summarize the relevant facts in the light
most favorable to the [non-moving parties].'" Chambers v. RDI
Logistics, Inc., 476 Mass. 95, 96 (2016), quoting Somers v.
Converged Access, Inc., 454 Mass. 582, 584 (2009). We recite
the facts based on the parties' joint statement of facts, the
Probate and Family Court judge's decision, and the documents in
the summary judgment record. See Mass R. Civ. P. 56, 365 Mass.
824 (1974).
In August, 2002, Robert6 set up a Yahoo e-mail account for
his brother John. John used the account as his primary e-mail
address until his death on August 10, 2006. He died intestate
and left no instructions concerning the disposition of the
account. Shortly before a Probate and Family Court judge
appointed Robert and Marianne as personal representatives for
John's estate,7 Marianne sent Yahoo a written request for access
5
We acknowledge the amicus briefs of Naomi Cahn, James D.
Lamm, Michael Overing, and Suzanne Brown Walsh, and of NetChoice
and the Internet Association.
6
The personal representatives assert that Robert set up the
electronic mail (e-mail) account for the benefit of John, but
that both brothers had the password to the account, and that,
with John's permission, Robert used it occasionally. Since he
used it rarely, he has forgotten the password. Yahoo!, Inc.
(Yahoo), claims that John set up the account.
7
The Uniform Probate Code defines a personal representative
5
to John's e-mail account. Yahoo declined to provide such
access; it wrote that it would instead furnish subscriber
information8 only if presented with a court order mandating
disclosure to the account holder's personal representatives.
Robert and Marianne subsequently obtained such an order, and
Yahoo provided them the subscriber record information.
In September, 2009, Robert and Marianne filed a complaint
in the Probate and Family Court seeking a judgment declaring
that they were entitled to unfettered access to the messages in
the decedent's e-mail account; they also asked that Yahoo be
ordered to provide the requested access. After the judge
allowed Yahoo's motion to dismiss their complaint, the Appeals
Court vacated the judgment.9 It remanded the matter to the
as the "executor, administrator, successor personal
representative, special administrator, special personal
representative, and persons who perform substantially the same
function under the law governing their status." G. L. c. 190B,
§ 1-201 (37).
8
The subscriber information provided by Yahoo includes e-
mail "header" information -- i.e., the sender, addressees, and
time stamp for e-mail messages -- for each e-mail message sent
and received, and basic information about the subscriber.
9
The Probate and Family Court judge (the same judge who
later ruled on the cross motions for summary judgment) dismissed
the complaint on the grounds that a forum selection clause in
the terms of service for the decedent's e-mail account required
that the action be brought in California. He also determined
that res judicata precluded the personal representatives from
filing their claim in Massachusetts. The Appeals Court
concluded that the doctrine of res judicata did not apply to the
allegations in the complaint and that the forum selection and
6
Probate and Family Court for a determination whether the SCA
bars Yahoo from releasing the contents of John's e-mail account
to his siblings as the personal representatives of the estate.
See Ajemian v. Yahoo!, Inc., 83 Mass. App. Ct. 565, 580 (2013).
On remand, the parties filed cross motions for summary
judgment. Robert and Marianne claimed that they were entitled
to access the contents of the Yahoo account because those
contents were property of the estate. Yahoo's position was two-
fold: the SCA prohibited the requested disclosure and, even if
it did not, any common-law property right that the decedent
otherwise might have had in the contents of the e-mail account
had been contractually limited by the terms of service. In
Yahoo's view, the terms of service granted it the right to deny
access to, and even delete the contents of, the account at its
sole discretion, thereby permitting it to refuse the personal
representatives' request.
The judge framed the issue before him as, first, whether
the SCA prohibited Yahoo from disclosing the contents of the e-
mail account and, if it did not, whether the contents are
property of the estate. While the judge allowed Yahoo's motion
for summary judgment solely on the basis that the SCA barred
limitations clauses in the terms of service could not be
enforced against the personal representatives. See Ajemian v.
Yahoo!, Inc., 83 Mass. App. Ct. 565, 572-573, 577 (2013). These
issues are not before us on appeal.
7
Yahoo from complying with the requested disclosure, he also
addressed Yahoo's alternative contention that the terms of
service contractually limited any property interest that the
decedent had in the contents of the account and thereby allowed
it to refuse access to such contents. The judge concluded both
that the estate had a common-law property interest in the
contents of the account and that the record before him was
insufficient to establish that the terms of service agreement,
purportedly limiting any such property interest, was itself
enforceable. More specifically, he determined that there were
disputed issues of material fact concerning the formation of
that agreement. The judge accordingly denied Yahoo's motion for
summary judgment on this separate basis.
Robert and Marianne appealed, and we transferred the case
to this court on our own motion.10
2. Whether the SCA prohibits Yahoo from disclosing the
contents of the e-mail account. a. Statutory overview.
Congress enacted the SCA in 1986 "to update and clarify Federal
privacy protections and standards in light of dramatic changes
10
Yahoo did not cross-appeal as to the common-law property
issue, and does not appear to have contested in the trial court
or on appeal that, absent the terms of service, the decedent's
estate would have a common-law property interest in the contents
of the e-mail account.
8
in new computer and telecommunications technologies."11
S. Rep. No. 541, 99th Cong., 2d Sess., reprinted in 1986
U.S.C.C.A.N. 3555, 3555. Given these vast technical advances,
the purpose of the SCA is "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."12 Commonwealth v. Augustine, 467
11
The Stored Communications Act (SCA) was enacted as Title
II of the broader Electronic Communications Privacy Act, Pub. L.
No. 99-508, 100 Stat. 1848 (1986).
12
More broadly, the SCA serves to fill a potential gap in
the protection afforded digital communications under the Fourth
Amendment to the United States Constitution. When the SCA was
enacted in 1986, the United States Supreme Court repeatedly had
held that information revealed to third parties does not warrant
Fourth Amendment protection because there is no reasonable
expectation of privacy in something that already has been
disclosed. See Smith v. Maryland, 442 U.S. 735, 745-746 (1979)
(no reasonable expectation of privacy in telephone numbers that
have been called from particular telephone because such
information shared with third-party telephone company); United
States v. Miller, 425 U.S. 435, 443 (1976) (banking records).
Digital communications, including e-mail, are by nature shared
with the Internet service providers that store them. See Kerr,
A User's Guide to the Stored Communications Act, and a
Legislator's Guide to Amending It, 72 Geo. Wash. L. Rev. 1208,
1210 (2004) (Kerr). When Congress enacted the SCA, it did so,
at least in part, in an effort to ensure that digital
communications would be protected, in light of the United States
Supreme Court's third-party doctrine. See S. Rep. No. 541, 99th
Cong., 2d Sess., reprinted in 1986 U.S.C.C.A.N. 3555, 3557,
citing Miller, supra ("because [digitally stored information] is
9
Mass. 230, 235 (2014), quoting In re Application of the U.S. for
an Order Pursuant to 18 U.S.C. § 2703(d), 707 F.3d 283, 286-287
(4th Cir. 2013).
To achieve this purpose, the SCA provides a tripartite
framework for protecting stored communications managed by
electronic service providers.13 First, subject to certain
exceptions, it prohibits unauthorized third parties from
accessing communications stored by service providers. See
18 U.S.C. § 2701. Second, it regulates when service providers
voluntarily may disclose stored electronic communications. See
18 U.S.C. § 2702. Third, the statute prescribes when and how a
government entity may compel a service provider to release
subject to control by a third party computer operator, the
information may be subject to no constitutional privacy
protection").
13
The SCA distinguishes between "electronic services --
electronic communication services [ECS] and remote computing
services [RCS]" Matter of a Warrant to Search a Certain E-Mail
Account Controlled & Maintained by Microsoft Corp., 829 F.3d
197, 206 (2d Cir. 2016) (Matter of a Warrant). The act defines
ECS as any service which allows users to "send or receive wire
or electronic communications," and RCS as a service that
provides "storage or processing services by means of an
electronic communications system." 18 U.S.C. §§ 2510, 2711.
Today, the distinction between ECS and RCS providers essentially
has gone the way of the switchboard operator, as most service
providers deliver both ECS and RCS services to subscribers. See
Kerr, supra at 1215 (most network service providers provide both
ECS and RCS services); Matter of a Warrant, supra. In any
event, this distinction is not material here, as the
restrictions against voluntary disclosure of the contents of
communications to private parties apply to both equally. See
18 U.S.C. § 2702. For convenience, we therefore refer to both
types of providers as "service providers."
10
stored communications to it. See 18 U.S.C. § 2703.
b. Analysis. At issue here is 18 U.S.C. § 2702, which
restricts the voluntary disclosure of stored communications.
That section prohibits entities that provide "service[s] to the
public" from voluntarily disclosing the "contents"14 of stored
communications unless certain statutory exceptions apply. See
18 U.S.C. § 2702(b)(1)-(8). The exceptions contained in
18 U.S.C. § 2702(b) allow a service provider to disclose such
contents without incurring civil liability under the SCA.15
Yahoo contends that 18 U.S.C. § 2702(a) prohibits it from
disclosing the contents of the e-mail account, while the
personal representatives argue that they fall within two of the
enumerated exceptions. The first of these, the so-called
"agency exception," allows a service provider to disclose the
14
The SCA defines "contents" as "any information concerning
the substance, purport, or meaning of [a] communication."
18 U.S.C. § 2510(8), as incorporated in 18 U.S.C. § 2711(1).
The term has been construed to mean "a person's intended message
to another (i.e., the 'essential part' of the communication, the
'meaning conveyed,' and the 'thing one intends to convey')." In
re Zynga Privacy Litig., 750 F.3d 1098, 1106 (9th Cir. 2014).
The personal representatives here agree that they are seeking
access to "contents," i.e., the decedent's stored
communications.
15
The SCA affords a civil right of action to "any provider
of electronic communication service, subscriber, or other person
aggrieved by any violation of [the SCA] in which the conduct
constituting the violation is engaged in with a knowing or
intentional state of mind." 18 U.S.C. § 2707(a). Successful
litigants are entitled to equitable relief, damages, and
reasonable attorney's fees and costs. 18 U.S.C. § 2707(b).
11
contents of stored communications "to an addressee or intended
recipient of such communication or an agent of such addressee or
intended recipient." 18 U.S.C. § 2702(b)(1). The second, the
"lawful consent" exception, allows disclosure "with the lawful
consent of the originator or an addressee or intended recipient
of such communication, or the [originator] in the case of remote
computing service." 18 U.S.C. § 2702(b)(3). We address the
applicability of each exception in turn.
i. Agency exception. The personal representatives contend
that they are John's agents for the purposes of 18 U.S.C.
§ 2702(b)(1). Because "agent" is a common-law term, and the SCA
does not provide an alternate definition, we look to the common
law to determine its meaning. When Congress uses a common-law
term, we must assume, absent a contrary indication, that it
intends the common-law meaning. See Microsoft Corp. v. i4i Ltd.
Partnership, 564 U.S. 91, 101 (2011); Beck v. Prupis, 529 U.S.
494, 500-501 (2000) ("when Congress uses language with a settled
meaning at common law, Congress 'presumably knows and adopts the
cluster of ideas that were attached to each borrowed word in the
body of learning from which it was taken'" [citation omitted]);
Matter of a Warrant to Search a Certain E-Mail Account
Controlled and Maintained by Microsoft Corp., 829 F.3d 197, 212
(2d Cir. 2016) ("In construing statutes, we interpret a legal
term of art in accordance with the term's traditional legal
12
meaning, unless the statute contains a persuasive indication
that Congress intended otherwise").
Under the common law, both as construed in the Commonwealth
and more generally, an "agent" "act[s] on the principal's behalf
and [is] subject to the principal's control." Restatement
(Third) of Agency § 1.01 (2006). See Theos & Sons, Inc. v. Mack
Trucks, Inc., 431 Mass. 736, 743 (2000) ("An agency relationship
is created when there is mutual consent, express or implied,
that the agent is to act on behalf and for the benefit of the
principal, and subject to the principal's control"). The
decedent's personal representatives do not fall within the ambit
of this common-law meaning; they were appointed by, and are
subject to the control of, the Probate and Family Court, not the
decedent. See G. L. c. 190B, § 3-601 (personal representatives
appointed by Probate and Family Court); G. L. c. 190B, § 3-611
(personal representative subject to removal by Probate and
Family Court); Restatement (Second) of Agency § 14F (1958) ("A
person appointed by a court to manage the affairs of others is
not an agent of the others"); Restatement (Third) of Agency
§ 1.01 comment f ("A relationship of agency is not present
unless the person on whose behalf action is taken has the right
to control the actor. Thus, if a person is appointed by a court
to act as a receiver, the receiver is not the agent of the
person whose affairs the receiver manages because the appointing
13
court retains the power to control the receiver"). Accordingly,
the personal representatives do not fall under the SCA's agency
exception.
ii. Lawful consent exception. The personal
representatives claim also that they lawfully may consent to the
release of the contents of the decedent's e-mail account in
order to take possession of it as property of the estate. See
18 U.S.C. § 2702(b)(3); G. L. c. 190B, § 3-709 (a) ("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 . . ."). Yahoo contends
that the personal representatives of the estate cannot lawfully
consent on behalf of the decedent, regardless of the estate's
property interest in the e-mail messages.16 In Yahoo's view, the
16
The question whether the e-mail messages are the property
of the estate was raised in the personal representatives'
complaint. As previously discussed, on remand from the Appeals
Court, the Probate and Family Court judge addressed the
question, in dicta, concluding that the e-mail messages were the
property of the estate. Yahoo in essence leaves this holding
unchallenged for purposes of this case, see note 10, supra,
contending instead that the terms of service agreement is a
binding contract that regulates access to the contents of the
account and supersedes any common-law property rights asserted
by the estate. Given this, we do not address the judge's ruling
that the estate had a common-law property right in the contents
of the account. We note, however, that numerous commentators
have concluded that users possess a property interest in the
contents of their e-mail accounts. See Darrow & Ferrera, Who
Owns A Decedent's E-Mails: Inheritable Probate Assets or
Property of the Network?, 10 N.Y.U. J. Legis. & Pub. Pol'y 281,
311–312 (2007) (arguing that e-mail should be construed as
14
lawful consent exception requires the user's actual consent --
i.e., express consent from a living user.
We thus are confronted with the novel question whether
lawful consent for purposes of access to stored communications
properly is limited to actual consent, such that it would
exclude a personal representative from consenting on a
decedent's behalf.17 We conclude that interpreting lawful
probate asset). See also Arner, Looking Forward by Looking
Backward: United States v. Jones Predicts Fourth Amendment
Property Rights Protections in E-Mail, 24 Geo. Mason U. Civ.
Rts. L.J. 349, 372-375 (2014); Lopez, Posthumous Privacy,
Decedent Intent, and Post-Mortem Access to Digital Assets, 24
Geo. Mason L. Rev. 183, 215–216 (2016); Watkins, Digital
Properties and Death: What Will Your Heirs Have Access to After
You Die?, 62 Buff. L. Rev. 193, 198–200 (2014).
17
There is no Federal or State case law of which we are
aware construing the meaning of lawful consent in this context.
The only potentially relevant case, cited by the parties, is In
re Request for Order Requiring Facebook, Inc., to Produce
Documents & Things, 923 F. Supp. 2d 1204 (N.D. Cal. 2012) (In re
Facebook). That case concerned the Facebook account of a young
woman who died after falling from the twelfth floor of an
apartment building. Id. at 1205. While the police apparently
came to the conclusion that her death was a suicide, the woman's
parents disputed this account and sought to access her Facebook
account to present evidence of her state of mind in the days
leading up to her death. Id. The parents filed an ex parte
application to subpoena records from her Facebook account. Id.
Facebook moved to quash the subpoena on the ground that it
violated the SCA. Id. The District Court judge ruled in favor
of Facebook on the ground that "civil subpoenas may not compel
production of records from providers like Facebook." Id. at
1206. The judge did, however, note in dictum that "nothing
prevents Facebook from concluding on its own that [the parents]
have standing to consent on [the woman's] behalf and providing
the requested materials voluntarily." Id.
Yahoo emphasizes the holding of the decision quashing the
15
consent in such a manner would preclude personal representatives
from accessing a decedent's stored communications and thereby
result in the preemption of State probate and common law.
Absent clear congressional intent to preempt such law, however,
there is a presumption against such an interpretation. See
Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 151 (2001)
("[R]espondents emphasize that the Washington statute involves
both family law and probate law, areas of traditional [S]tate
regulation. There is indeed a presumption against pre-emption
in areas of traditional [S]tate regulation such as family law");
United States v. Texas, 507 U.S. 529, 534 (1993) ("[s]tatutes
which invade the common law . . . are to be read with a
presumption favoring the retention of long-established and
subpoena on the ground that it violated the SCA. Id. That
holding is inapposite here, however, as the issue before us is
not whether the personal representatives may compel Yahoo to
provide them access to the decedent's e-mail account, but
whether Yahoo may provide them such access without violating the
terms of the SCA. The personal representatives emphasize the
dictum at the end of the decision in support of their contention
that "nothing prevents" Yahoo from concluding that they may
lawfully consent on the decedent's behalf. Id.
Yahoo also points to a decision issued after argument in
this case concerning an executor's attempt to provide lawful
consent on behalf of a decedent. See PPG Indus., Inc. vs.
Jiangsu Tie Mao Glass Co., Ltd., U.S. Dist. Ct., No. 2:15-CV-
965, slip op. at 1-2 (W.D. Pa. July 21, 2017). Like In re
Facebook, however, that decision does not answer the question
before us. See id. at 4 ("[T]he [c]ourt need not decide whether
[the executor's consent] to production of [the decedent's]
emails is sufficient to establish 'lawful consent' under
§ 2702[b][3]").
16
familiar principles, except when a statutory purpose to the
contrary is evident" [citation omitted]). The statutory
language and legislative history of the lawful consent exception
in the SCA do not evidence such a congressional intent.
A. Presumption against preemption. In interpreting a
Federal statute, we presume that Congress did not intend to
intrude upon traditional areas of State regulation or State
common law unless it demonstrates a clear intent to do so. See
Egelhoff, 532 U.S. at 151; Texas, 507 U.S. at 534; Jones v. Rath
Packing Co., 430 U.S. 519, 525 (1977) ("we start with the
assumption that the historic police powers of the States were
not to be superseded by the Federal Act unless that was the
clear and manifest purpose of Congress" [citation omitted]);
Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952) ("Statutes
which invade the common law . . . are to be read with a
presumption favoring the retention of long-established and
familiar principles, except when a statutory purpose to the
contrary is evident"). This presumption ensures that the
"[F]ederal-[S]tate balance . . . will not be disturbed
unintentionally by Congress or unnecessarily by the courts"
(citation omitted). See Jones, supra.
Congress enacted the SCA against a backdrop of State
probate and common law allowing personal representatives to take
17
possession of the property of the estate.18 To construe lawful
18
When the SCA was enacted, the probate laws of a majority
of States allowed a personal representative to take control of
the property of a decedent for the purpose of marshalling the
assets of the estate. See, e.g., Alaska Stat. § 13.16.380,
inserted by 1972 Alaska Sess. Laws, c. 78, § 1 (every personal
representative has right to take possession or control of
decedent's property); Ariz. Rev. Stat. Ann. § 14-3709, inserted
by 1973 Ariz. Sess. Laws, c. 75, § 4; Ark. Code Ann. § 28-49-
101, as amended by 1961 Ark. Acts, Act 424, § 1; Idaho Code Ann.
§ 15-3-709, inserted by 1971 Idaho Sess. Laws, c. 111, § 1; Ind.
Code § 29-1-13-1, as amended through 1979 Ind. Acts, P.L. 268,
§ 45; Iowa Code § 633.350, inserted by 1963 Iowa Acts, c. 326,
§ 350; Kan. Stat. Ann. § 59-1401, as amended through 1985 Kan.
Sess. Laws, c. 191, § 20; Me. Rev. Stat. tit. 18-A, § 3-709,
inserted by 1979 Me. Laws, c. 540, § 1; Md. Code Ann., Est. &
Trusts § 7-102, inserted by 1974 Md. Laws, c. 11, § 2; Mich.
Comp. Laws § 700.601, as amended by 1979 Mich. Pub. Acts, no.
51; Minn. Stat. § 524.3-709, inserted by 1974 Minn. Laws,
c. 442, art. 3, § 524.3-709; N.J. Stat. Ann. § 3B:10-29,
inserted by 1981 N.J. Laws, c. 405, § 3B; Okla. Stat. tit. 58,
§ 290, inserted by 1910 Okla. Sess. Laws § 6322; Or. Rev. Stat.
§ 114.225, inserted by 1969 Or. Laws, c. 591, § 121; 20 Pa.
Cons. Stat. § 3311, inserted by 1972 Pa. Laws, P.L. 508, no.
164, § 2; Utah Code Ann. § 75-3-708, inserted by 1975 Utah Laws,
c. 150, § 4; Wyo. Stat. Ann. § 2-7-401, as appearing in 1980
Wyo. Sess. Laws, c. 54, § 1. See also Uniform Probate Code § 3-
709 (1969), http://www.uniformlaws.org/shared/docs
/probate%20code/upc_scan_1969.pdf [https://perma.cc/SG32-ZUHY]
("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 by him will be necessary for purposes
of administration"); Uniform Law Commission, Probate Code,
http://www.uniformlaws.org/Act.aspx?title=Probate%20Code
[https://perma.cc/EZ9C-HURN] (Uniform Probate Code has been
adopted by Virgin Islands and eighteen States, including
Colorado, Florida, Hawaii, Massachusetts, Montana, Nebraska, New
Mexico, North Dakota, South Carolina, and South Dakota); Uniform
Probate Code, 8 U.L.A., Index, at 1 (Master ed. 2013).
At common law, personal representatives also have the right
18
consent as being limited to actual consent, thereby preventing
personal representatives from gaining access to a decedent's
stored communications, would significantly curtail the ability
of personal representatives to perform their duties under State
probate and common law. Most significantly, this interpretation
would result in the creation of a class of digital assets --
stored communications -- that could not be marshalled.19
Moreover, since e-mail accounts often contain billing and other
financial information, which was once readily available in paper
form, an inability to access e-mail accounts could interfere
to take possession of a decedent's property on behalf of the
estate. See, e.g., Goodwin v. Jones, 3 Mass. 514, 518 (1807)
(personal representative has right at common law to take
possession of decedent's property); Matter of the Estate of
Heinze, 224 N.Y. 1, 8 (1918) (court-appointed administrator has
power over property of decedent under common law); Felton v.
Felton, 213 N.C. 194, 194 (1938) (court-appointed administrators
possess "legal title to the personal assets of their intestate's
estate" pursuant to common law).
19
See Banta, Inherit the Cloud: The Role of Private
Contracts in Distributing or Deleting Digital Assets at Death,
83 Fordham L. Rev. 799, 852 (2014) ("Email accounts and social
networking sites are the new letters and personal records of
today's society. The historical importance of our digital
records cannot be underestimated"); Edwards & Harbinja,
Protecting Post-Mortem Privacy: Reconsidering the Privacy
Interests of the Deceased in A Digital World, 32 Cardozo Arts &
Ent. L.J. 83, 117 (2013) ("More than ever before, 'ordinary
people,' leave digital relics which may be highly personal and
intimate, and are increasingly preserved and accessible in large
volume after death"); Lamm, Kunz, Riehl, & Rademacher, The
Digital Death Conundrum: How Federal and State Laws Prevent
Fiduciaries from Managing Digital Property, 68 U. Miami L. Rev.
385, 389–390 (2014) ("A 2011 survey found that U.S. consumers
valued their digital assets, stored across multiple digital
devices, at an average of $55,000 per person").
19
with the management of a decedent's estate. See Banta, Inherit
the Cloud: The Role of Private Contracts in Distributing or
Deleting Digital Assets at Death, 83 Fordham L. Rev. 799, 811
(2014) (noting importance of access to online accounts to
individuals trying to manage deceased person's estate).
Nothing in the statutory language or the legislative
history of the SCA evinces a clear congressional intent to
intrude upon State prerogatives with respect to personal
representatives of a decedent's estate.
B. Statutory language. The SCA does not define the term
"lawful consent," and, unlike the hundreds of years of common
law defining the meaning of the term "agent," there is no
similar State common-law backdrop with respect to the phrase
"lawful consent." Accordingly, we begin with the ordinary
meaning of the words. See BedRoc Ltd., LLC v. United States,
541 U.S. 176, 183 (2004) (statutory interpretation inquiry
"begins with the statutory text"). "[C]onsent" is defined as
"[a] voluntary yielding to what another proposes or desires."
Black's Law Dictionary (10th ed. 2014). "[L]awful" is defined
as "[n]ot contrary to law; permitted or otherwise recognized by
law." Id. at 1018. The plain meaning of the term "lawful
consent" thus is consent permitted by law.
Nothing in this definition would suggest that lawful
consent precludes consent by a personal representative on a
20
decedent's behalf. Indeed, 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,20 physician-patient,21 and
20
See, e.g., Sullivan v. Brabazon, 264 Mass. 276, 286
(1928) (personal representative may waive decedent's attorney-
client privilege); Marker v. McCue, 50 Idaho 462 (1931) (same);
Buuck v. Kruckeberg, 121 Ind. App. 262, 271 (1950) (same);
Holyoke v. Holyoke's Estate, 110 Me. 469 (1913) (same); Grand
Rapids Trust Co. v. Bellows 224 Mich. 504, 510-511 (1923)
(same); Canty v. Halpin, 294 Mo. 96 (1922) (same); In re
Parker's Estate, 78 Neb. 535 (1907) (same); Martin v. Shaen, 22
Wash. 2d 505, 512 (1945) (same).
21
See Calhoun v. Jacobs, 141 F.2d 729, 729 (D.C. Cir. 1944)
(personal representative may waive decedent's patient-physician
privilege); Schirmer v. Baldwin, 182 Ark. 581 (1930) (same);
Morris v. Morris, 119 Ind. 341 (1889) (same); Denning v.
Butcher, 91 Iowa 425 (1894) (same); Fish v. Poorman, 85 Kan. 237
(1911) (same); N.Y. Life Ins. Co. v. Newman, 311 Mich. 368, 373
(1945) (same); In re Estate of Koenig, 247 Minn. 580, 588 (1956)
(same); In re Gray's Estate, 88 Neb. 835 (1911); Grieve v.
21
psychotherapist-patient privilege.22 Under the Uniform Probate
Code,23 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.
Finally, had Congress intended lawful consent to mean only
actual consent, it could have used language such as "actual
consent" or "express consent" rather than "lawful consent."
See, e.g., 18 U.S.C. § 2721(a)(2) (prohibiting State departments
of motor vehicles from releasing personal information "without
the express consent of the person to whom such information
applies" [emphasis supplied]); Central Bank of Denver, N.A. v.
First Interstate Bank of Denver, N.A., 511 U.S. 164, 176 (1994)
(Congress knew how to provide for liability for aiding and
Howard, 54 Utah 225 (1919) (same).
22
See Dist. Attorney for the Norfolk Dist. v. Magraw, 417
Mass. 169, 172-174 (1994) (personal representative may waive
psychotherapist-patient privilege); Rittenhouse v. Superior
Court of Sacramento County, 235 Cal. App. 3d 1584, 1588 (1991)
(same).
23
See note 18, supra (listing jurisdictions that have
adopted Uniform Probate Code).
22
abetting but chose not to do so); Pinter v. Dahl, 486 U.S. 622,
650 (1988) ("When Congress wished to create [substantial factor
liability for an offense], it had little trouble doing so");
Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 734 (1975)
("When Congress wished to provide a remedy to those who neither
purchase nor sell securities, it had little trouble doing so
expressly").
Accordingly, 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.
C. Legislative history. To the extent there is any
ambiguity in the statutory language, we turn to the legislative
history of the SCA. See Block v. Community Nutrition Inst., 467
U.S. 340, 349 (1984) (all presumptions used in interpreting
statutes may be overcome by "specific legislative history that
is a reliable indicator of congressional intent"); United States
v. Awadallah, 349 F.3d 42, 51 (2d Cir. 2003), cert. denied, 543
U.S. 1056 (2005) (court may look to statute's legislative
history where text is ambiguous). The reports of the House and
Senate committees on the judiciary shed light on the purpose of
the SCA and on 18 U.S.C. § 2702 in particular. The Senate
committee report explains that the purpose of the Electronic
Communications Privacy Act (ECPA), the broader Federal statute
23
that includes the SCA, is to "protect against the unauthorized
interception of electronic communications" and to "update and
clarify Federal privacy protections and standards in light of
dramatic changes in new computer and telecommunications
technologies." S. Rep. No. 541, 99th Cong., 2d Sess., reprinted
in 1986 U.S.C.C.A.N. at 3555. With regard to the ECPA, the
House committee report states,
"The purpose of the legislation is to amend title 18
of the United States Code to prohibit the interception of
certain electronic communications; to provide procedures
for interception of electronic communications by [F]ederal
law enforcement officers; to provide procedures for access
to communications records by [F]ederal law enforcement
officers; to provide procedures for [F]ederal law
enforcement access to electronically stored communications;
and to ease certain procedural requirements for
interception of wire communications by [F]ederal law
enforcement officers."
H.R. Rep. No. 647, 99th Cong., 2d Sess., at 16 (1986). This
stated purpose demonstrates congressional concern with the
protection of stored communications against "unauthorized
interception" by "overzealous law enforcement agencies,
industrial spies and private parties." S. Rep. No. 541, 99th
Cong., 2d Sess., reprinted in 1986 U.S.C.C.A.N. at 3555, 3557.
It does not suggest congressional concern over personal
representatives accessing stored communications in conjunction
with their duty to manage estate assets.24
24
Given the nascent state of digital technology at the time
of the SCA's enactment in 1986, the congressional silence on the
24
Beyond Congress's overarching purpose in passing the SCA,
the House committee report notes that "lawful consent" "need not
take the form of a formal written document of consent." H.R.
Rep. No. 647, 99th Cong., 2d Sess., at 66. Instead, such
consent "might be inferred to have arisen from a course of
dealing . . . -- e.g., where a history of transactions between
the parties offers a basis for reasonable understanding that a
consent to disclosure attaches to a particular class of
communications." Id. Moreover, lawful consent could "flow from
a user having had a reasonable basis for knowing that disclosure
or use may be made with respect to a communication, and having
taken action that evidences acquiescence to such disclosure or
use -- e.g. continued use of such an electronic communication
system." Id.
Congress thereby 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
impact of the SCA on personal representatives is understandable.
When the statute was enacted, the New York Times had mentioned
the Internet a total of once. See Matter of a Warrant, 829 F.3d
at 206, quoting Rosenzweig, Wizards, Bureaucrats, Warriors, and
Hackers: Writing the History of the Internet, 103 Am. Hist.
Rev. 1530, 1530 (1998). The World Wide Web had yet to be
invented, and the use of e-mail by the general public was years
in the future. Matter of a Warrant, supra. As one commentator
noted, Congress at that time did not have any reason to foresee
the development of digital communications "as a set of assets
capable of inheritance or facilitating access to other assets."
See Naomi Cahn, Probate Law Meets the Digital Age, 67 Vand. L.
Rev. 1697, 1715 (2014).
25
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 pre-
emption." 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.
This does not, however, require Yahoo to divulge the
contents of the decedent's communications to the personal
representatives. We conclude only that the SCA does not stand
in the way of Yahoo doing so and that summary judgment for Yahoo
on this basis was not warranted.25
25
The Legislature is, of course, not precluded from
regulating the inheritability of digital assets. Indeed, the
Revised Uniform Fiduciary Access to Digital Assets Act, which
addresses this issue, has been enacted by a majority of States,
including more than a dozen that have done so in 2017, and eight
more States currently are considering whether to do so. See
Fiduciary Access to Digital Assets Act, Revised (2015),
http://www.uniformlaws.org/Act.aspx?title=Fiduciary%20Access%20
to%20Digital%20Assets%20Act,%20Revised%20%282015%29 [https://
perma.cc/9BAP-3WUW].
26
3. Terms of service agreement. Yahoo maintains that the
allowance of its motion for summary judgment also was
appropriate on the independent ground that the terms of service
agreement, binding upon the decedent and his estate, confers on
it the right to refuse the personal representatives access to
the contents of the account. Otherwise put, Yahoo contends that
the terms of service trump the personal representatives'
asserted property interest.
In support of this position, Yahoo relies on the
"termination provision" in the terms of service, which purports
to grant Yahoo nearly unlimited rights over the contents of the
e-mail account. That provision states:
"You agree that Yahoo, in its sole discretion, may
terminate your password, account (or any part thereof) or
use of the Service, and remove and discard any Content
within the Service, for any reason, including, without
limitation, for lack of use or if Yahoo believes that you
have violated or acted inconsistently with the letter or
spirit of the [terms of service]. Yahoo may also in its
sole discretion and at any time discontinue providing the
Service, or any part thereof, with or without notice. You
agree that any termination of your access to the Service
under any provision of [these terms of service] may be
effected without prior notice, and acknowledge and agree
that Yahoo may immediately deactivate or delete your
account and all related information and files in your
account and/or bar any further access to such files or the
Service. Further, you agree that Yahoo shall not be liable
to you or any third-party for any termination of your
access to the Service."
The express language of the termination provision, if
enforceable, thus purports to grant Yahoo the apparently
27
unfettered right to deny access to the contents of the account
and, if it so chooses, to destroy them rather than provide them
to the personal representatives.26
Because the record before him was not adequate to establish
the essentials of valid contract formation, the judge was unable
to determine -- even as an initial matter -- whether the terms
of service agreement could constitute an enforceable contract.27
The judge observed that Yahoo had not established that a
26
Yahoo's decision not to grant access to the contents of
the account and its asserted right to destroy such contents
(which it apparently has preserved thus far) is grounded in the
substantive rights it claims to have under the terms of service
agreement. It has forborne the exercise of those asserted
rights during the pendency of this litigation, in which the
enforceability of that contract is squarely at issue. See note
27, infra. To the extent that the dissent may suggest
otherwise, we are unaware of any reason to believe that, upon
remand, were the agreement in whole or pertinent part to be
deemed unenforceable for any reason, Yahoo would engage in acts
of spoliation or otherwise fail to comply with court orders
requiring access to the contents of the account.
27
The record does not include the parties' legal memoranda
supporting their cross motions for summary judgment.
Nonetheless, we infer from the judge's ruling, and the parties'
briefs on appeal, that the focus of the issue regarding the
enforceability of the agreement was as to matters of contract
formation. Other considerations, such as consistency with
public policy or any putative unconscionability of the terms of
service, had yet to be reached. Nor does it appear that any
dispute was raised regarding the meaning of the termination
provision. We note further that Yahoo has agreed not to
exercise its asserted rights under the terms of service "to
remove and discard" any content of the e-mail account during the
pendency of this litigation. The terms of service, however,
include a provision stating that "[t]he failure of Yahoo to
exercise or enforce any right or provision of the [terms of
service] shall not constitute a waiver of such right or
provision."
28
"meeting of the minds" had occurred with respect to the terms of
service, including whether they had been communicated to, and
accepted by, the decedent. The judge accordingly denied Yahoo's
motion for summary judgment on this alternative ground. We
discern no error in this regard, and remand the matter for
further proceedings.
4. Conclusion. The judgment is vacated and set aside.
The matter is remanded to the Probate and Family Court for
further proceedings consistent with this opinion.
So ordered.
GANTS, C.J. (concurring in part and dissenting in part). I
agree with the court that the Stored Communications Act (SCA),
18 U.S.C. §§ 2701 et seq., does not prohibit Yahoo!, Inc.
(Yahoo), from disclosing to the personal representatives of an
estate the electronic mail (e-mail) messages in the decedent's
account so that the personal representatives may perform their
duties under our State probate and common law. I also agree
with the court that the judge's allowance of summary judgment on
behalf of Yahoo must be vacated. I write separately because,
where there were cross motions for summary judgment, I would go
beyond the court's order of remand and issue an order directing
judgment in favor of the personal representatives on their
motion for summary judgment.
In deciding the cross motions for summary judgment, the
Probate and Family Court judge made two rulings of law. First,
he ruled that "the content of the decedent's e-mails are
property of the [e]state; there is no genuine issue of material
fact as to this issue." Second, he ruled that "the SCA
prohibits [Yahoo] from divulging the contents of the decedent's
e-mails to the [p]ersonal [r]epresentatives." Yahoo does not
challenge the first ruling on appeal. This court has determined
that the second ruling is an error of law. However, rather than
order that judgment issue in favor of the personal
representatives on their complaint seeking a declaration that
2
they are entitled to complete access to the contents of the
decedent's e-mail account, the court orders that the matter be
remanded to the Probate and Family Court to adjudicate disputed
issues of material fact as to whether the "terms of service"
agreement constitutes a binding, enforceable contract that
"trump[s] the personal representatives' asserted property
interest" in the contents of the account. Ante at .
The order of remand is unnecessary. I recognize that there
remain disputed issues of fact as to whether the terms of
service agreement was executed by the decedent and binds the
estate, and unresolved disputed issues of law as to whether it
would be contrary to public policy to enforce an agreement
comprised of eleven pages of boilerplate language that a
prospective user must accept "as is" before Yahoo will grant the
user access to its service. Therefore, for purposes of this
opinion, I assume for the sake of argument that the terms of
service agreement is both binding and enforceable against the
estate. But even with this assumption, when one looks closely
at the specific section (section thirteen, governing
termination) that Yahoo claims is relevant to the issue on
appeal, it cannot as a matter of law yield a judgment in favor
of Yahoo.
Section thirteen allows Yahoo "for any reason" to terminate
a user's password, account, or use of the service, and to
3
"remove and discard any Content within the service."1 It further
provides that Yahoo is not liable "for any termination of your
access to the Service." Yahoo does not and cannot contend that
the authority claimed in this termination provision gives it any
ownership interest in a user's content. In fact, section eight
of the terms of service provides, "Yahoo does not claim
ownership of Content you submit or make available for inclusion
on the Service." All that section thirteen does is allow Yahoo
to discard any of the content owned by the user (or, here, the
estate of the user) on its servers without risk of liability for
doing so. Thus, it would permit Yahoo to discard e-mail
messages in a terminated account without fear that it will be
held liable if, many years later, the user's estate seeks access
to those messages.
The issue on appeal, however, is not whether Yahoo is
liable to the estate for content that it previously discarded,
but whether a court may order Yahoo to provide the plaintiffs
with content it continues to retain. The provision cannot
reasonably be interpreted to mean that Yahoo has the contractual
right to destroy a user's e-mail messages after the user
initiates a court action to obtain the messages. Such
destruction would violate our prohibition against the spoliation
1
See ante at for the full text of section thirteen of
the "terms of service" agreement.
4
of evidence. See Keene v. Brigham & Women's Hosp., Inc., 439
Mass. 223, 234 (2003) (doctrine of spoliation of evidence "is
based on the premise that a party who has negligently or
intentionally lost or destroyed evidence known to be relevant
for an upcoming legal proceeding should be held accountable for
any unfair prejudice that results"). Nor can it justify the
destruction of such e-mail messages after a court orders that
they be provided to the user or his or her personal
representatives. Such destruction would constitute contempt of
a court order.
If the motion judge on remand were to rule that this
provision contractually allows Yahoo to destroy e-mail messages
in its possession that are owned by a user (or a personal
representative of the estate of the user) after the user has
filed a court action to obtain access to these messages, we
would surely reverse that ruling. So why remand the case to
permit that possibility?
Not only is the remand unnecessary, but it also is unfair
to the plaintiffs. The additional cost of further litigation is
a financial pinprick to a Web services provider such as Yahoo,
but it is a heavy financial burden on the assets of an estate,
even a substantial estate. The plaintiffs should not have to
spend a penny more to obtain estate property in the possession
of Yahoo that they need to administer the estate.