DIGITAL PRIVACY - IT AIN'T OVER TIL THE DEAD PERSON TWEETS - AJEMIAN V. YAHOO!, INC.

• Author: Kohen, Danielle

Planning your "digital afterlife" has become a common practice amongst tech-savvy consumers of the internet's top social media providers. (1) Companies not only implore you to think ahead about your digital footprint, but they have also started implementing afterlife-centric practices. (2) People wanting access to a deceased friends or family member's photos, memories, and statuses has become common, but determining who has the right to access information after death has invoked privacy concerns. (3) In Ajemian v. Yahoo!, Inc., (4) the Supreme Judicial Court of Massachusetts ("SJC") addressed the Stored Communications Act, 18 U.S.C. [section] 2702(b)'s ("SCA") bar against disclosing stored communications. (5) The SJC vacated a ruling of summary judgment in favor of Yahoo! citing the Fiduciary Access to Digital Assets Act of 2015. (6)

In August 2006, John Ajemian ("Ajemian") died unexpectedly. (7) Four years before his death, Ajemian and his brother, Robert, set up a Yahoo! email account together. (8) Upon Ajemian's death, Robert wanted access to the Yahoo! account. (9) After requesting permission from Yahoo! to access the joint account, Robert was denied. (10)

In their contract, Yahoo! stated when opening email accounts they have the "discretion to reject the personal representatives' request" upon the death of a user. (11) Ajemian did not leave a will or instructions for what to do with his online accounts pursuant to his death. (12) Upon Yahoo!'s denial, Robert and Mariane brought suit in Probate and Family Court for the family to gain access to Ajemian's email account. (13) The judge in the Probate and Family Court ordered summary judgment for Yahoo!. (14) The SJC heard the appeal, vacated the judgment, and remanded the case to Probate and Family Court for further proceedings. (15) The SJC transferred the case on its own motion. (16) In March 2018, the United States Supreme Court ("Supreme Court") denied Yahoo!'s petition for writ of certiorari. (17)

Access to stored communications is strictly limited to those with permitted access. (18) Preparing for digital afterlife may be daunting, but it provides guidance to personal representatives on what to do with active online accounts. (19) If no will or instructions are left, states vary on who may be granted access pursuant to a decedent's death because no court at a higher level has declared a legal standard that should be applied. (20) The SCA has a three-prong analysis for electronic communications. (21) The SCA "prohibits entities that provide services to the public from voluntarily disclosing the contents of stored communications unless certain statutory exceptions apply." (22)

Society has increasingly changed with the advent of the digital space. (23) In Japan, Yahoo! has attempted to counter the issue of death and social media by creating Yahoo! Ending. (24) Society also has to worry about what the effect of granting email access to families without explicit consent from decedent's might mean for other online institutions such as mobile banking, health care records or online diaries. (25)

Courts have also looked at statutory interpretation as a guiding force for delineating technicalities in the SCA. (26) While a court presumes that Congress's intentions are stated within the statute, courts will not read a statute to be incongruent with state law. (27) However, an ability to opt out of state law does not save a state law from being preempted. (28) New rules and navigation with the advent of the internet has forced Congress to endure an introspective into what is protected and what is not by the SCA. (29)

The court in Ajemian v. Yahoo!, Inc. determined how parties must maintain and store digital communications into the afterlife. (30) The Ajemian court agreed with the concept that the world changed with the advent of the internet and the courts must do so as well. (31) The privacy and privilege that corresponds with an email address cannot be whittled down to the discretion of a service contract when the contract is disfavored as a matter of public policy. (32)

The Court undertook a statutory analysis to determine whether the SCA prohibited Yahoo! from disclosing the contents of the decedent's email account. (33) Yahoo! adopted a broad concept and attempted to create a vague rule that protected their interests over the wishes of a...