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Be Sure to Bequeath All Your Passwords to Your Heirs, Executors, Administrators, Successors and Assigns

Posted By Cliff Tuttle | October 22, 2017

No. 1,357

AJEMIAN v. YAHOO!, INC., SJC – 122337, Supreme Judicial Court of Massachusetts, October 16, 2017

John Ajemian died in a bicycle accident.  He had an email account with Yahoo! when he died, containing four years of stored emails.  The administrators of his estate, his brother and sister, would really like to read those emails.  They might contain information helpful in estate administration, like bills and electronic receipts and who knows what? And besides — this account was the property of their deceased brother and so, under the law of intestate succession, now it belongs to them!

But Yahoo won’t give access to them.  Something about needing to use the password.  And of course, brother John took that information with him to the grave.

And so, Robert and Marianne Ajemian did what any two red blooded Americans would do.  They sued. The trial court granted summary judgment to Yahoo! on the grounds that a federal statute, the Stored Communications Act, 18 USC § 2701 et seq, prohibits it. The Supreme Judicial Court of Massachusetts accepted jurisdiction on its own motion.

The Supreme Judicial Court made short work of that defense.  “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.”

Yahoo refused to divulge the contents because, it argued, it had no right to release the information under the service agreement, at least, not without the password. Concluding that there were unresolved material facts involved in that determination, the case was remanded.

One interesting determination of the decision is that the SJD concluded that the administrator could not claim the right of access as the decedent’s agent.  An agent, it noted, is under the control of the principal.  Being dead, the decedent can not exercise control.

This decision doesn’t yield much, if any, precedent in Massachusetts and none in Pennsylvania.  However, it signals issues that will become increasingly important in an electronic era.  Encourage clients to keep passwords in a safe place and to communicate the information to named executors or likely administrators.  This should include not only the password for email accounts, but other passwords as well. And then, once an account is accessed, change the passwords.

CLT

 


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CLIFF TUTTLE has been a Pennsylvania lawyer for over 40 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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