You Be the Judge: Who Got (Your) Mail?

After John Ajemian was tragically killed in a bicycle accident in 2006, his brother Roger, who had set up an email account for his brother in 2002 and occasionally shared it, wanted to access the account in order to contact John’s friends and associates about his untimely death. Unfortunately, Roger could not remember the password.

John, 43, died without a will and left no instructions regarding his property, including how to access his Yahoo email account, so Roger and his sister, Marianne, who were appointed as coadministrators of John’s estate, requested assistance from Yahoo. In response, Yahoo declined to provide access to the account, citing a federal law, the Stored Communications Act (SCA), which prohibits providers from disclosing the contents of electronic communications stored in their system unless there is lawful consent by the owner of the content. Yahoo explained it could provide basic subscriber information if they had a court order mandating disclosure to the account holder’s personal representatives, but cautioned that even with such an order, Yahoo’s Terms of Service (TOS) agreement governing John’s email account provided Yahoo with the discretion to reject the personal representative’s request.

In 2007, the administrators filed a complaint in the Probate and Family Court of Norfolk County, seeking to compel Yahoo to disclose John’s account records. Yahoo provided them with John’s subscriber information and email header data, but not the emails themselves. In 2009, the administrators filed a second action seeking “complete and unfettered access to the contents of the account,” claiming that the emails were property of John’s estate and that its administrators should have unlimited access to the content of the account.

The parties were in litigation for nearly a decade. The ultimate question was whether John’s emails were property of his estate and, as such, an administrator or executor could give consent to release the digital assets in accordance with the Stored Communications Act.

Throughout the proceedings, Yahoo claimed no ownership of John’s email content before or after his death. Yahoo maintained that according to the TOS agreement, John’s email account was not transferable and should have been terminated and the contents deleted upon receipt of the death certificate. The company maintained that the comprehensive set of privacy rights of the SCA should be followed, arguing that any exception by a probate court would degrade the privacy of millions of Americans the moment they die. In this case, they warned, complete control to publish or keep the emails confidential shifts to the estate administrator, who could be a trusted family friend or a complete stranger to the decedent.

How Would You Rule?

On October 16, 2017, the Supreme Judicial Court of Massachusetts held that personal representatives may provide lawful consent on a decedent’s behalf. The issue of the enforceability of Yahoo’s Terms of Service agreement was remanded to the Massachusetts Probate and Family Court for further proceedings. On March 26, 2018, the United States Supreme Court denied Yahoo’s appeal.

With many legal issues yet to be decided, people should create a plan for digital assets in the same way they would treat any other valuable tangible or intangible asset.

This article appears in the September/October 2018 issue of The Saturday Evening Post. Subscribe to the magazine for more art, inspiring stories, fiction, humor, and features from our archives.

75 Years Ago This Week: Defending The Right to Criticize in Times of Crisis

While the Post fully supported America’s war efforts after Pearl Harbor, it reserved the right to be critical of the administration.

Popular support for the war was very strong in December of 1941, and few Americans were publicly opposing it. But the Post had published several editorials that attacked how the Roosevelt administration was managing war finances and information about the conflict.

Because of this criticism, several readers were asking what gave the Post any right “to criticize the Administration, after having said it was the duty of all Americans to support their Government in war, whether they had been for it or against it before the fact.” The Post responded:

“To these we say, in the first place, that the Administration is not the Government—not yet. For all we know, the American Government may still be at war when this Administration is gone. We say to them, secondly, that loyalty to one’s Government in war is an American duty, and freedom to criticize one’s Government, even in war, is an American right.

“We have not surrendered that right—the right to criticize the Administration’s conduct of the war, the right to tell the truth as we believe it about the war, which is, after all, the people’s war because they will have to fight and pay for it; nor the right to say what we think about what is happening at the same time to the principles of free, representative, constitutional government, not necessarily on account of the war.

“If we have not that right, if every American citizen has not that right, what are we fighting for?”

The editorial ends with an admonishment that if we planned to confer FDR’s four freedoms upon other nations, we shouldn’t forget that they first belonged to us.