In the 2017 Case of Ajemian v. Yahoo! Inc., the Supreme Judicial Court of Massachusetts Wastes Everybody’s Time Ruling that an Estate May, Possibly, Have Legal Access to the Decedent’s Email Account

In the 2017 case of Ajemian v. Yahoo!, Inc.  the Supreme Judicial Court of Massachusetts (“SJC”) has decided that federal law does not prohibit an internet service provider from voluntarily disclosing the contents of a decedent’s e-mail account to the Personal Representative of the decedent’s estate.

Unfortunately, the SJC chose to sidestep the issue of whether the Terms of Service agreement (i.e., that take-it-or-leave-it agreement we all have to accept when opening an email account) could by itself allow an internet service provider to prevent an estate from having access to a decedent’s email account. The SJC remanded the issue back down to the Probate Court. That means the SJC wrote a lot of words but accomplished very little, and the successful plaintiffs in Ajemian have to continue to spend funds in the Probate Court litigating the sidestepped issue. There is a lot of time and expense put into a case before it gets to the SJC, and it is a shame when the SJC chooses to do the bare minimum.

In an ironic dissent to the remand, Chief Justice Ralph Gants (who a few months ago had chosen to sidestep a simple issue in the case of Daley v. Secretary of the Executive Office of Health and Human Services and had forced the issue to be remanded) all of a sudden became concerned about fairness to litigants opposing large, well-funded entities, writing:

“Not only is the remand unnecessary, but it also is unfair to the plaintiffs. The additional cost of further litigation is … a heavy financial burden. … The plaintiffs should not have to spend a penny more.”

Less than five months earlier, it had apparently been acceptable to Chief Justice Gants in Daley when a large state agency was shown to be abusing its authority and treating MassHealth applicants unfairly; he never said one word about that issue in his written opinion. (It is now almost five months after remands were ordered by the SJC, and the agency has taken no steps to advance the remanded cases.) Hopefully, the litigants in Ajemian will have their issues resolved in the court below and not have to go back up to the SJC, but I predict that the case will be brought back up there; the SJC made the choice to waste everybody’s time writing a partial decision when the sidestepped, remanded issue was already briefed and in front of the Court; you can read all of the briefs at http://ma-appellatecourts.org/display_docket.php?src=party&dno=SJC-12237. (Contrast those actions, ignoring a briefed issue in Ajemian, with the SJC’s actions in Daley, where it wrote about issues that hadn’t even been briefed or argued.)

Note that, as mentioned in Ajemian, Massachusetts General Laws, Chapter 190B, Section 3-709 could allow the Personal Representative of an estate to have access to the decedent’s assets, but also note that the law begins with “[e]xcept as otherwise provided by a decedent’s will.”  Thus, it is possible that a decedent’s will could deny access to email accounts and other such digital assets.  If you have something in your online history that you don’t want to be seen after you are gone, you may want to add a provision into your will that not only denies access to the account but also directs the destruction of the email account or other digital assets.