Oath Holdings v. Ajemian: Who Can Access Your Email Post-Mortem?

Digest Reports Privacy

Petition for Writ of Certiorari, Oath Holdings, Inc., v. Ajemian, No. 17-1005 (U.S. Jan. 16, 2018), petition hosted by SCOTUSblog.  Brief in Opposition (Feb. 20, 2018), brief hosted by SCOTUSblog. 

Yahoo! Inc. (“Yahoo”) filed a petition for certiorari to the Supreme Court to provide an answer to whether an intestate’s email information can be shared with a court-appointed executor under the Stored Communications Act (“SCA”), 18 U.S.C. § 2701 et seq., absent a decedent’s will or actual consent. After the death of John Ajemian, siblings Marianne and Robert Ajemian were appointed by the local probate court as co-administrators of John’s estate. When the executors attempted to compel Yahoo to provide access to the contents of their brother’s Yahoo email account, Yahoo filed a motion for summary judgment rejecting the co-administrator’s requests, relying on the SCA which prohibits, with certain exceptions, the release of private emails by service providers. The Massachusetts probate court granted Yahoo summary judgment, finding that Ajemian’s executors did not fall under the SCA’s exceptions.   

On appeal to the Massachusetts Supreme Judicial Court (“SJC”), the executors argued that their request for access did fall within two exceptions set forth in the SCA:  the agency exception, 18 U.S.C. § 2702(b)(1), and the consent exception, 18 U.S.C. § 2702(b)(3). First, the SJC found the executors to be receivers and thus not entitled to access the emails under the agency exception. The court did, however, find persuasive that the executors were covered by the consent exception. The SJC interpreted “lawful consent” to encompass consent by court-appointed estate administrators. Finding no clear congressional intent to preempt state law, the SJC extended the common-law rule allowing personal representatives to provide consent on behalf of a decedent to waive the decedent’s rights. Therefore, the SJC found that summary judgment in favor of Yahoo on the basis of the SCA should not have been allowed.

Yahoo’s certiorari petition to the Supreme Court emphasizes that the statute’s explicit language reflects its fundamental purpose to place prohibitions on communication providers sharing personal information with third parties with few circumscribed exceptions.  Citing United States v. Councilman, Yahoo argues that the judiciary should be restrained in finding any implied exceptions for estate executors when Congress had the opportunity to include such an explicit exception. Yahoo, calling the SJC’s preemption analysis “flawed,” argues that “lawful consent,” within the meaning of the statute, cannot be expanded to reach consent by a legal substitute, such as a court-appointed administrator, to make an end run around the fact that the account owner has died without providing actual consent. Moreover, according to Yahoo, even if executors could provide implied-in-law consent, the company retains broad discretion in allowing an executor to access an intestate’s account.  Facebook, Inc., Google LLC, Dropbox, Inc., among others, have filed a joint motion for leave to file brief of amici curiae in support of Yahoo’s position.

The respondents’ brief argues that there is neither genuine judicial “conflict” nor an important question of federal law meriting Supreme Court resolution.  In response to the petition’s characterization of the SJC’s decision as an “expansive, flawed and dangerous interpretation of a federal statute,” the brief of respondents contends that the SJC came to a “wholly unremarkable conclusion.” The respondents analogize the issue to other situations where a personal representative may provide lawful consent on behalf of the decedent, such as initiating lawsuits that decedents could have brought at time of death, waiving privileges in court, and selling a decedent’s property.   

When the case was with the SJC, Harvard Law School's Cyberlaw Clinic filed an amicus brief recommending the judiciary play a balancing act between preserving important privacy interests and improving the ability for estate executors to access relevant information that—prior to the digitization époque—could only be found in paper and was usually legally accessible to estate executors. While Yahoo’s attorneys argue that the dead continue to have privacy rights that should not be undermined unless the decedent gives explicit authorization prior to death,  a fundamental element to probate law is the executor’s general access to a decedent’s assets.  Since much of this information is increasingly only accessible digitally, Yahoo’s distinction between digital and physical assets is seemingly contrary to the spirit of probate law.


Oladeji M. Tiamiyu is a 1L student at Harvard Law School.