Massachusetts Courts Mull Right of Access to Deceased Family Members' E-mail

A case in the Massachusetts Court of Appeals, Ajemian v. Yahoo!, Inc., decided on May 7, is the latest case dealing with ownership of digital assets after death.

Plaintiffs, Marianne Ajemian and Robert Ajemian, are co-administrators of their brother John Gerald Ajemian's estate. In 2002, Robert opened a Yahoo! account for John. Robert was a co-user of the account, but used it infrequently; rather, John was the primary user. John was killed in an accident in 2006. By that time, Robert had forgotten the password to the account. Plaintiffs tried to access the account to help them locate his assets and contact John's friends to inform them of his death.

However, Yahoo! refused to let them access the account and its content, claiming that it would be a breach of the Stored Communications Act (SCA), 18. U.S.C. §§ 2701 et seq. The SCA provides a cause of action against someone who "intentionally accesses without authorization a facility through which an electronic communication service is provided ... and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage."

After negotiation with Yahoo!, Plaintiffs filed a declaratory judgment action in Probate Court seeking a declaration that they were entitled to access the subscriber records of John’s email account (including subscriber information and e-mail header data, but not the e-mails themselves). Yahoo! agreed not to oppose that action, and a probate judge granted access to those records.

However, Yahoo! and the Plaintiffs did not reach agreement on the content of the account, i.e., the actual content of John’s e-mails. Accordingly, Plaintiffs brought a second declaratory judgment action in Probate Court to request access to the content of the account. Robert also brought this second action individually as a co-owner of the email account. Plaintiffs argued that the emails were the property of John’s estate and that thus its administrators should have access to the content of the account. They also argued that Robert was individually entitled to access the content of the account.

Yahoo! moved to dismiss the claim under the doctrine of res judicata, which bars relitigating a matter already adjudicated by a court. A second probate judge accepted Yahoo’s argument that the issue of the content of the e-mails could have been litigated in the first action, and was now foreclosed. The probate judge also ruled that the forum selection clause in Yahoo!’s Terms of Service (TOS) was enforceable and required any claims to be litigated in California.

Plaintiffs appealed to the Massachusetts Appeals Court, which reversed the judgment of the probate court, and remanded the case. The Appeals Court found that (1) the doctrine of res judicata did not apply because the first probate case had been limited in scope pursuant to an agreement with Yahoo!, and (2) Yahoo! had not established either that the forum selection clause had been accepted by the Plaintiffs or was enforceable. The ultimate issue in the case was, however, left undecided -- whether John’s e-mails were property of his estate. This question will be now addressed on remand by the probate judge. What factors will affect that decision?

Terms of Service

It is unlikely that the Plaintiffs would be able to claim rights arising out of Yahoo!’s Terms of Service, given that the Appeals Court’s ruling on the forum selection clause was based in part on a finding of insufficient evidence that the Plaintiffs had accepted the Yahoo! TOS. However, the TOS of email service providers may not provide much help to family members seeking access to email anyway.

This is not the first time that ownership of Yahoo! e-mail has been litigated. In 2005, Yahoo! allowed the father of a Marine killed in Iraq to access the content of his son’s email account, but only after a Michigan probate court ordered it. Yahoo! had taken the position that releasing the content without a court order would be a violation of its TOS.

In the present case, according to the Appeals Court, Yahoo! claimed no ownership in users’content under the version of the TOS effective at the time of John’s death in 2006, but also stated that the account was not transferable, and that the account would be terminated and all content deleted upon receipt of the death certificate of the user. These provisions remain in effect under Yahoo’s current terms. Yahoo! also states in its