Monday, October 16, 2017

Decedent's reps fight Yahoo! for email access, beat federal preemption argument in state high court

The Massachusetts Supreme Judicial Court has rendered a thought-provoking judgment about postmortem access to a decedent's Yahoo! e-mail account.  The case is Ajemian v. Yahoo!, Inc., No. SJC-12237, Oct. 16, 2017, per Justice Lenk.  The SJC nabbed the case sua sponte from Mass. App.  The case will be available soon from new slip opinions.

Yahoo! denied access to the personal representatives of the decedent's estate on two grounds: (1) that access was prohibited by the preemptive, federal Stored Communications Act (SCA) (1986), essentially a sectoral privacy statute, and (2) that the representatives' common law property interest in digital assets was superseded by Yahoo! terms of service (ToS).

The trial court ruled in favor of Yahoo! on the SCA grounds and opined only indeterminately on the ToS argument.  The SJC reversed and remanded.  The Court employed a presumption against implied preemption to find the representatives outside the "lawful consent" terms of statutory exemption in the SCA, which would require actual owner consent.  The SCA therefore provided no barrier to access under state law on these facts. This is an important precedent in state construction of federal law to limit the reach of the SCA.

Tantalizingly on the ToS front, the trial court held that it could not opine definitively on Yahoo!'s position because of unresolved questions about the formation and enforceability of the ToS as contract.  The SJC reiterated that the trial judge had not established whether a "meeting of the minds" had occurred as purported prerequisite to contract.  That's a compelling observation in our world, awash as it is with click-wrap adhesion agreements being held enforceable by the courts without serious scrutiny.  "Meeting of the minds," however much a staple of 1L Contracts, has been pretty much read out of the analysis in today's boilerplate world.

The case will be one to watch if it generates another appeal, but I'll be surprised if on these facts, Yahoo! goes to the mat if that means risking the ToS on the record.


  1. I could see a game of chicken ensuing though, where Yahoo! thinks that there's no way the SJC would undercut something as monumentally pervasive as online, click-wrap ToS, and the plaintiffs think there's no way Yahoo!'s legal team would risk such a blow. I'd need more research on the case to figure out the specifics of how bad Yahoo! would want to win this, but being a faithful follower of the prophet probability, I imagine they'll just try to settle this ASAP (and then double down on their ToS restrictions).

  2. (Agreed, Ethan.) The U.S. Supreme Court just granted cert. (Oct. 16) in a case on the Stored Communication Act with wide ranging implications for data protection, privacy, and globalization. Robinson+Cole has excellent coverage here: