Ajemian v. Yahoo!, Inc.
A man died in a bicycle accident with no will and an email account his brother said he had opened for him. Eleven years later the Massachusetts Supreme Judicial Court answered the question the whole field had been stuck on: a personal representative can give lawful consent on behalf of a decedent.
John G. Ajemian died on August 10, 2006, in a bicycle accident. He was 43 and had no will.
His brother and sister, Robert and Marianne Ajemian, were appointed co-administrators of his estate. They wanted the contents of a Yahoo! email account opened in August 2002 — an account Robert said he had set up for John's benefit, a point Yahoo disputed.
Yahoo declined, and its central argument was not the one people expect. It was not really about privacy policy or terms of service. It was that a federal criminal statute forbade disclosure: the Stored Communications Act, 18 U.S.C. §2701 et seq., under which a provider of electronic communication service shall not knowingly divulge the contents of a communication it holds in electronic storage, subject to a list of exceptions in §2702(b).
The complaint was filed on September 15, 2009, in the Norfolk Division of the Massachusetts Probate and Family Court. It reached the Supreme Judicial Court eight years later, and the answer it produced is the single most important American judicial statement on inherited email.
Eight years before anyone reached the actual issue
The procedural history is a small case study in how long a novel question takes to get answered.
The first Probate and Family Court judge dismissed the case on a forum selection clause in Yahoo's terms of service — the provision routing disputes to California. In 2013 the Massachusetts Appeals Court vacated that dismissal, rejecting both the forum selection defence and a res judicata argument, and sent the case back for the Stored Communications Act question to be considered. That decision is reported at 83 Mass. App. Ct. 565 (2013).
On remand the Probate and Family Court granted Yahoo summary judgment on the SCA ground. The case went up again. The Supreme Judicial Court heard argument on March 9, 2017, and decided it on October 16, 2017, in an opinion by Justice Lenk.
Seven and a half years of litigation, and the merits question — what is in the account, and who gets it — had still not been reached.
“Lawful consent” includes a personal representative's
The Court held that the Stored Communications Act does not prohibit disclosure here. In its own words, the statute “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.”
The reasoning ran through three moves, and each is worth knowing because each is now the standard answer to a question that comes up in practice.
- Personal representatives are not “agents.” Yahoo pointed to §2702(b)(1), which permits disclosure to an addressee or intended recipient or their agent. The Court rejected that route: personal representatives are “appointed by, and are subject to the control of, the Probate and Family Court, not the decedent.” A fiduciary answerable to a judge is not the decedent's agent.
- But they can give “lawful consent” under §2702(b)(3). The Court read the words as written — consent as “a voluntary yielding to what another proposes or desires,” lawful as “not contrary to law; permitted or otherwise recognized by law” — and declined to limit consent to a living user's own act. Personal representatives already consent lawfully for decedents elsewhere in the law: the Court pointed to HIPAA and to the waiver of attorney-client privilege.
- Congress did not legislate about this. The Court noted the presumption against pre-emption in areas of traditional state regulation, and observed that a narrow reading of lawful consent would significantly curtail personal representatives' ability to perform their duties under state probate and common law. In 1986, it said, Congress had no reason to foresee the development of digital communications “as a set of assets capable of inheritance.”
That last observation is the intellectual centre of the case. The Stored Communications Act was not badly drafted. It was drafted before the thing it now governs existed. Courts and legislatures have spent twenty years retrofitting a 1986 wiretap-era privacy statute onto a question about inheritance, and Ajemian is the decision that finally said so out loud.
Permits is not requires
This is the part that gets left out of the summaries, and it is the part that matters to anyone actually trying to get an account released.
The SCA is a prohibition with exceptions. Holding that an exception applies means the provider may disclose. It does not mean the provider must. Yahoo had a second, independent argument: its terms of service reserved the right to terminate an account and delete its contents for any reason, in its sole discretion.
The Court left that live. It held the trial judge had properly denied Yahoo summary judgment on that alternative ground, because material disputes about contract formation remained — whether there had been a meeting of the minds, and whether the terms were communicated to and accepted by the decedent. Recall that Robert Ajemian said he opened the account. If he did, the question of who agreed to what becomes considerably more interesting.
The judgment was vacated and set aside and the matter remanded to the Probate and Family Court for further proceedings. Yahoo's successor, Oath Holdings, petitioned the United States Supreme Court. The petition, No. 17-1005, was denied on March 26, 2018 — the same day the Court granted leave for Facebook and others to file as amici.
So the state of the law after Ajemian is precise: the federal statute is not the obstacle. The contract might still be.
Timeline
- 1986Congress enacts the Stored Communications Act. Section 2702(a) bars a provider from knowingly divulging stored contents; §2702(b) lists the exceptions, including disclosure with lawful consent.
- Aug 2002The Yahoo email account is created. Robert Ajemian says he set it up for his brother's benefit; Yahoo disputes it.
- Aug 10, 2006John G. Ajemian dies in a bicycle accident at 43, intestate. His siblings Robert and Marianne are appointed co-administrators.
- Sep 15, 2009The complaint is filed in the Norfolk Division of the Massachusetts Probate and Family Court.
- 2013The Massachusetts Appeals Court vacates a dismissal based on Yahoo's forum selection clause and remands. 83 Mass. App. Ct. 565.
- Mar 9, 2017The Supreme Judicial Court hears argument in SJC-12237.
- Oct 16, 2017The SJC holds the Stored Communications Act permits disclosure where personal representatives lawfully consent on the decedent's behalf. Judgment vacated; remanded on the terms-of-service question.
- Mar 26, 2018The United States Supreme Court denies certiorari in Oath Holdings, Inc. v. Ajemian, No. 17-1005.
What actually went wrong
- No will, and no direction about the account. An intestate estate had to litigate for the authority a single sentence in a will now supplies under Florida's §740.006.
- Nobody could say who opened the account. The dispute over whether Robert set it up for John went unresolved for a decade and ended up being material to the contract question. Account provenance is an estate fact; it should be recorded like one.
- A 1986 privacy statute applied to a 2006 inheritance. Not anyone's fault. But it is why eleven years passed before a court answered a question that a modern statute answers in a paragraph.
- A forum selection clause consumed four years. The first appeal was not about email at all. It was about where the argument was allowed to happen.
- The provider's discretion survived the win. Even after the SJC ruled, the terms of service remained a live obstacle on remand. Winning the federal question is not the same as getting the messages.
Would it have gone that way in Florida?
Florida reached the same destination by statute in 2016 — and left exactly the same loose end Ajemian did.
Ajemian is a Massachusetts decision and binds nothing in Florida. It matters here for two reasons: it is the clearest judicial explanation of why a personal representative may consent for a decedent under federal law, and its unresolved half is unresolved in Florida too.
Florida codified the consent route. §740.006 provides that where a deceased user consented, or a court directs, the custodian shall disclose the content of electronic communications to the personal representative, on a written request, a certified death certificate, certified letters of administration or an equivalent order, and — unless an online tool was used — a record evidencing the user's consent. Where the user consented in life, Florida does not need Ajemian's reasoning at all: the consent is documentary, and the statute makes disclosure mandatory rather than merely permitted.
Florida also built in the federal check. Under §740.06, if a fiduciary has to go to a Florida circuit court to compel a custodian, the court's order must contain a finding that disclosure is not in violation of 18 U.S.C. §2702. That is the Stored Communications Act, named in the Florida statute — the legislature knew exactly which federal wall Ajemian had spent eleven years pushing on, and wrote the judicial finding into the process.
And Florida left the contract question open, in the same place. §740.004(1) states that the chapter does not change or impair a right of a custodian or a user under a terms-of-service agreement, and §740.004(3) allows a fiduciary's access to be modified or eliminated by the terms of service where the user gave no direction under §740.003. That is Ajemian's remand issue, converted into a statutory rule. The honest caveat: Chapter 740 defeats a contract term only where the user actually directed something. If the decedent set no online tool and said nothing in any document, the provider's terms remain in play, and a Florida fiduciary is arguing about contract formation in 2026 exactly as Yahoo and the Ajemians were.
There is a quieter Florida point in the facts. Ajemian was an intestate estate, which is why the co-administrators were the decedent's siblings. In Florida, appointment where there is no will runs through §733.301, and with no spouse and no descendants the priority falls to the heirs — a question that has to be settled before anybody writes to a custodian at all. Every day spent establishing who the personal representative is, is a day the account is sitting under a provider's inactivity policy.
The instruction is one sentence and it removes this entire case from your family's life. Consent in writing while you are alive — set the online tools, and put a clause in the will, the trust, and the durable power of attorney expressly consenting to disclosure of the content of electronic communications. Ajemian is the eleven-year version of that sentence.
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Further reading
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Sources
- Ajemian v. Yahoo!, Inc., SJC-12237 (Mass. Oct. 16, 2017) — Supreme Judicial Court of Massachusetts, via Justia
- Ajemian v. Yahoo!, Inc., 83 Mass. App. Ct. 565 (2013) — Massachusetts Appeals Court — the forum selection ruling
- Oath Holdings, Inc. v. Ajemian, No. 17-1005 — docket — Supreme Court of the United States
- 18 U.S.C. §2702 — Voluntary disclosure of customer communications or records — Cornell Legal Information Institute
- Fla. Stat. §740.006 — Disclosure of content of electronic communications of deceased user — The Florida Senate
- Fla. Stat. §740.06 — Custodian compliance and immunity — The Florida Senate
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Nearly every case in this archive turned on something ordinary — an unwitnessed page, a stale beneficiary line, a document nobody could find. Those are cheap to fix while you're alive and expensive to fix afterward.