March 9, 2017.
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.
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.
J. Zwillinger (Jeffrey G. Landis also present) for the
defendant. Mason Kortz, for Naomi Cahn & others, amici
curiae, submitted a brief.
R. McCullagh & Ryan T. Mrazik, of Washington, &
Joseph Aronson, for NetChoice & another, amici curiae,
submitted a brief.
C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.
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,
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.
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.
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.
the judgment must be vacated and set aside, and the matter
remanded to the Probate and Family Court for further
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
August, 2002, Robert 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,  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 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
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. 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).
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.
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.
and Marianne appealed, and we transferred the case to this
court on our own motion.
Whether the SCA prohibits Yahoo from disclosing the contents
of the e-mail account.
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."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." 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).
achieve this purpose, the SCA provides a tripartite framework
for protecting stored communications managed by electronic
service providers. 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.
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" 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
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
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").
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.
Lawful consent exception.
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 ...