478 Mass. 169 (2017), SJC-12237, Ajemian v. Yahoo!, Inc.

Docket Nº:SJC-12237
Citation:478 Mass. 169, 84 N.E.3d 766
Opinion Judge:LENK, J.
Party Name:Marianne AJEMIAN, coadministrator,[1] & another[2] v. YAHOO!, INC.
Attorney:Robert L. Kirby, Jr. (Thomas E. Kenney also present), Boston, for the plaintiffs. Marc J. Zwillinger (Jeffrey G. Landis also present), Washington, for the defendant. Mason Kortz, for Naomi Cahn & others, amici curiae, submitted a brief. James R. McCullagh & Ryan T. Mrazik, of Washington, & Joseph...
Judge Panel:Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[3] GANTS, C.J. (concurring in part and dissenting in part).
Case Date:October 16, 2017
Court:Supreme Judicial Court of Massachusetts
 
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478 Mass. 169 (2017)

84 N.E.3d 766

Marianne AJEMIAN, coadministrator,1 & another2

v.

YAHOO!, INC.

No. SJC-12237

Supreme Judicial Court of Massachusetts, Norfolk

October 16, 2017

Heard: March 9, 2017

COMPLAINT filed in the Norfolk Division of the Probate and Family Court Department on September 15, 2009.

Following review by the Appeals Court, 83 Mass.App.Ct. 565, 987 N.E.2d 604 (2013), the case was heard by John D. Casey, J., on motions for summary judgment.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Robert L. Kirby, Jr. (Thomas E. Kenney also present), Boston, for the plaintiffs.

Marc J. Zwillinger (Jeffrey G. Landis also present), Washington, for the defendant.

Mason Kortz, for Naomi Cahn & others, amici curiae, submitted a brief.

James R. McCullagh & Ryan T. Mrazik, of Washington, & Joseph Aronson, Boston, for NetChoice & another, amici curiae, submitted a brief.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.3

OPINION

LENK, J.

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This case concerns access sought by the personal representatives of an estate to a decedent's electronic mail (e-mail) account. Such an account is a form of property often referred to as a " digital asset." On August 10, 2006, forty-three year old John Ajemian died in a bicycle accident; he had no will. He left behind a Yahoo!, Inc. (Yahoo), e-mail account that he and his brother, Robert Ajemian,4 had opened four years earlier; he left no instructions regarding treatment of the account. Robert and Marianne Ajemian, John's siblings, subsequently were appointed as personal representatives of their brother's estate. In that capacity, they sought access to the contents of the e-mail account. While providing certain descriptive information, Yahoo declined to provide access to the account, claiming that it was prohibited from doing so by certain requirements of the Stored Communications Act (SCA), 18 U.S.C. § § 2701 et seq. Yahoo also maintained that the terms of service governing the e-mail account provided it with discretion to reject the personal representatives' request. The siblings commenced an action in the Probate and

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Family Court challenging Yahoo's refusal, and a judge of that court allowed Yahoo's motion for summary judgment on the ground that the requested disclosure was prohibited by the SCA. This appeal followed.

We are called upon to determine whether the SCA prohibits Yahoo from voluntarily disclosing the contents of the e-mail account to the personal representatives of the decedent's estate. 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.

In its motion for summary judgment, Yahoo argued also that it was entitled to judgment as a matter of law on the basis of the terms of service agreement, claiming thereby to have discretion to decline the requested access. Noting that material issues of fact pertinent to the enforceability [84 N.E.3d 769] of the contract remained in dispute, the judge properly declined to enter summary judgment for either party on that basis. Accordingly, the judgment must be vacated and set aside, and the matter remanded to the Probate and Family Court for further proceedings.5

1. Background.

In reviewing the allowance of a motion for summary judgment, " we ‘ summarize the relevant facts in the light most favorable to the [non-moving parties].' " Chambers v. RDI Logistics, Inc., 476 Mass. 95, 96, 65 N.E.3d 1 (2016), quoting Somers v. Converged Access, Inc., 454 Mass. 582, 584, 911 N.E.2d 739 (2009). We recite the facts based on the parties' joint statement of facts, the Probate and Family Court judge's decision, and the documents in the summary judgment record. See Mass. R. Civ. P. 56, 365 Mass. 824 (1974).

In August, 2002, Robert6 set up a Yahoo e-mail account for his brother John. John used the account as his primary e-mail address

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until his death on August 10, 2006. He died intestate and left no instructions concerning the disposition of the account. Shortly before a Probate and Family Court judge appointed Robert and Marianne as personal representatives for John's estate,7 Marianne sent Yahoo a written request for access to John's e-mail account. Yahoo declined to provide such access; it wrote that it would instead furnish subscriber information8 only if presented with a court order mandating disclosure to the account holder's personal representatives. Robert and Marianne subsequently obtained such an order, and Yahoo provided them the subscriber record information.

In September, 2009, Robert and Marianne filed a complaint in the Probate and Family Court seeking a judgment declaring that they were entitled to unfettered access to the messages in the decedent's e-mail account; they also asked that Yahoo be ordered to provide the requested access. After the judge allowed Yahoo's motion to dismiss their complaint, the Appeals Court vacated the judgment.9 It remanded the matter to the Probate and [84 N.E.3d 770] Family Court for a determination whether the SCA bars Yahoo from releasing the contents of John's e-mail account to his siblings as the personal representatives of the estate. See Ajemian v. Yahoo!, Inc., 83 Mass.App.Ct. 565, 580, 987 N.E.2d 604 (2013).

On remand, the parties filed cross motions for summary judgment. Robert and Marianne claimed that they were entitled to access the contents of the Yahoo account because those contents were property of the estate. Yahoo's position was two-fold: the

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SCA prohibited the requested disclosure and, even if it did not, any common-law property right that the decedent otherwise might have had in the contents of the e-mail account had been contractually limited by the terms of service. In Yahoo's view, the terms of service granted it the right to deny access to, and even delete the contents of, the account at its sole discretion, thereby permitting it to refuse the personal representatives' request.

The judge framed the issue before him as, first, whether the SCA prohibited Yahoo from disclosing the contents of the e-mail account and, if it did not, whether the contents are property of the estate. While the judge allowed Yahoo's motion for summary judgment solely on the basis that the SCA barred Yahoo from complying with the requested disclosure, he also addressed Yahoo's alternative contention that the terms of service contractually limited any property interest that the decedent had in the contents of the account and thereby allowed it to refuse access to such contents. The judge concluded both that the estate had a common-law property interest in the contents of the account and that the record before him was insufficient to establish that the terms of service agreement, purportedly limiting any such property interest, was itself enforceable. More specifically, he determined that there were disputed issues of material fact concerning the formation of that agreement. The judge accordingly denied Yahoo's motion for summary judgment on this separate basis.

Robert and Marianne appealed, and we transferred the case to this court on our own motion.10

2. Whether the SCA prohibits Yahoo from disclosing the contents of the e-mail account.

a. Statutory overview.

Congress enacted the SCA in 1986 " to update and clarify Federal privacy protections and standards in light of dramatic changes in new computer and telecommunications technologies." 11 S. Rep. No. 541, 99th Cong., 2d Sess., reprinted in 1986 U.S.C.C.A.N. 3555, 3555. Given these vast technical advances, the purpose of the SCA is " to protect the privacy of users of electronic communications by criminalizing the unauthorized access of the contents

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and transactional records of stored wire and electronic communications, while providing an avenue for law enforcement entities to compel a provider of electronic communication services to disclose the contents and records of electronic communications." 12 [84 N.E.3d 771] Commonwealth v. Augustine, 467 Mass. 230, 235, 4 N.E.3d 846 (2014), quoting In re Application of the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d), 707 F.3d 283, 286-287 (4th Cir. 2013).

To achieve this purpose, the SCA provides a tripartite framework for protecting stored communications managed by electronic service providers.13 First, subject to certain exceptions, it prohibits unauthorized third parties from accessing communications

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stored by service providers. See 18 U.S.C. § 2701. Second, it regulates when service providers...

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