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Ajemian v. Yahoo!, Inc.

Supreme Judicial Court of Massachusetts, Norfolk

October 16, 2017

MARIANNE AJEMIAN, coadministrator, [1] & another[2]
v.
YAHOO!, INC.

          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 (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) for the plaintiffs.

          Marc J. Zwillinger (Jeffrey G. Landis also present) for the defendant. Mason Kortz, for Naomi Cahn & others, amici curiae, submitted a brief.

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

          Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. [3]

          LENK, J.

         This case concerns access sought by the personal representatives of an estate to a decedent's electronic mail (email) 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 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 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 (2016), quoting Somers v. Converged Access, Inc., 454 Mass. 582, 584 (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, Robert[6] set up a Yahoo e-mail account for his brother John. John used the account as his primary e-mail address 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 information[8] 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 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 (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 twofold: the 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 email 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 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] Commonwealth v. Augustine, 467 Mass. 230, 235 (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 stored by service providers. See 18 U.S.C. § 2701. Second, it regulates when service providers voluntarily may disclose stored electronic communications. See 18 U.S.C. § 2702. Third, the statute prescribes when and how a government entity may compel a service provider to release stored communications to it. See 18 U.S.C. § 2703.

         b. Analysis.

         At issue here is 18 U.S.C. § 2702, which restricts the voluntary disclosure of stored communications. That section prohibits entities that provide "service[s] to the public" from voluntarily disclosing the "contents"[14] of stored communications unless certain statutory exceptions apply. See 18 U.S.C. § 2702(b)(1)-(8). The exceptions contained in 18 U.S.C. § 2702(b) allow a service provider to disclose such contents without incurring civil liability under the SCA.[15]

         Yahoo contends that 18 U.S.C. § 2702(a) prohibits it from disclosing the contents of the e-mail account, while the personal representatives argue that they fall within two of the enumerated exceptions. The first of these, the so-called "agency exception, " allows a service provider to disclose the contents of stored communications "to an addressee or intended recipient of such communication or an agent of such addressee or intended recipient." 18 U.S.C. § 2702(b)(1). The second, the "lawful consent" exception, allows disclosure "with the lawful consent of the originator or an addressee or intended recipient of such communication, or the [originator] in the case of remote computing service." 18 U.S.C. § 2702(b)(3). We address the applicability of each exception in turn.

         i. Agency exception.

         The personal representatives contend that they are John's agents for the purposes of 18 U.S.C. § 2702(b)(1). Because "agent" is a common-law term, and the SCA does not provide an alternate definition, we look to the common law to determine its meaning. When Congress uses a common-law term, we must assume, absent a contrary indication, that it intends the common-law meaning. See Microsoft Corp. v. i4i Ltd. Partnership, 564 U.S. 91, 101 (2011); Beck v. Prupis, 529 U.S. 494, 500-501 (2000) ("when Congress uses language with a settled meaning at common law, Congress 'presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken'" [citation omitted]); Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp., 829 F.3d 197, 212 (2d Cir. 2016) ("In construing statutes, we interpret a legal term of art in accordance with the term's traditional legal meaning, unless the statute contains a persuasive indication that Congress intended otherwise").

         Under the common law, both as construed in the Commonwealth and more generally, an "agent" "act[s] on the principal's behalf and [is] subject to the principal's control." Restatement (Third) of Agency § 1.01 (2006). See Theos & Sons, Inc. v. Mack Trucks, Inc., 431 Mass. 736, 743 (2000) ("An agency relationship is created when there is mutual consent, express or implied, that the agent is to act on behalf and for the benefit of the principal, and subject to the principal's control"). The decedent's personal representatives do not fall within the ambit of this common-law meaning; they were appointed by, and are subject to the control of, the Probate and Family Court, not the decedent. See G. L. c. 190B, § 3-601 (personal representatives appointed by Probate and Family Court); G. L. c. 190B, § 3-611 (personal representative subject to removal by Probate and Family Court); Restatement (Second) of Agency § 14F (1958) ("A person appointed by a court to manage the affairs of others is not an agent of the others"); Restatement (Third) of Agency § 1.01 comment f ("A relationship of agency is not present unless the person on whose behalf action is taken has the right to control the actor. Thus, if a person is appointed by a court to act as a receiver, the receiver is not the agent of the person whose affairs the receiver manages because the appointing court retains the power to control the receiver"). Accordingly, the personal representatives do not fall under the SCA's agency exception.

         ii. Lawful consent exception.

         The personal representatives claim also that they lawfully may consent to the release of the contents of the decedent's e-mail account in order to take possession of it as property of the estate. See 18 U.S.C. § 2702(b)(3); G. L. c. 190B, § 3-709 (a) ("Except as otherwise provided by a decedent's will, every personal representative has a right to, and shall take possession or control of, the decedent's property . . ."). Yahoo contends that the personal representatives of the estate cannot lawfully consent on behalf of the decedent, regardless of the estate's property interest in the ...


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