Estate Planning in Cyberspace: Making Sure Data Doesn’t Byte the Dust
Ownership of contents of online email account gets called into question after account owner dies — Ajemian v. Yahoo!, Inc., 987 N.E.2d 604 (Mass. Ct. App. May 7, 2013)
Who owns the data in an online account after the account owner dies? It’s a question that’s growing in importance as online email accounts become commonplace and cloud storage services like DropBox and Google Drive gain users. A Massachusetts court faced that question in Ajemian v. Yahoo!, Inc., but left it unresolved.
In Ajemian, an individual (Robert) opened a Yahoo! email account for the primary use of his brother, John. Robert shared the account as a co-user. Several years after Robert opened the account, John died. Robert and his sister Marianne were appointed co-administrators of John’s estate. At the time of John’s death, Robert had not accessed the Yahoo! account for several years and had forgotten the password.
Robert and Marianne tried to get access to the contacts in Yahoo! account to retrieve email addresses of John’s friends and notify them of John’s death and memorial service. Robert and Marianne also wanted access to the emails in the account to help identify and locate John’s assets and administer his estate.
After negotiations, Yahoo! agreed to turn over the subscriber information for John’s account to Robert and Marianne if they obtained a valid court order, which they did. Yahoo! believed that the Stored Communications Act prohibited it from disclosing the contents of the emails in the account, however. This prompted Robert and Marianne to sue Yahoo! in the Massachusetts probate court. Robert and Marianne argued that the emails were the property of John’s estate and, therefore, as administrators of the estate, they were entitled to access to the emails. Robert also argued that as co-owner of the account, he was entitled to its contents.
The probate court dismissed the lawsuit on various grounds, including that the Terms of Service (TOS) governing the Yahoo! account required the lawsuit to be filed in California. On appeal, the Appeals Court of Massachusetts decided that the TOS was unenforceable because Yahoo! failed to prove that it reasonably communicated the TOS to Robert and that he indicated his acceptance of the TOS, such by clicking on a box that says “I Agree” (i.e., a “clickwrap” agreement). Even if Robert had accepted the TOS, the court would not enforce the forum selection clause contained in the TOS because it was unreasonable and overbroad. The Appeals Court sent the case back to the probate court for a ruling on the issue of access to the contents of the Yahoo! account.
LegalTXTS Lesson: Because the contents of online accounts can be quite valuable, they should be treated as an asset in an estate planning program. Much hassle and confusion can be avoided by making pre-death decisions about how one’s online information should be handled upon one’s death, such as entitlement of access to the accounts and ownership of their contents. To plan effectively, one might need to take into account the terms and service corresponding to online services. In Ajemian, for example, the terms and conditions for the Yahoo! account purportedly limited the transferability of the account and terminated the rights to the Yahoo! ID and the account’s contents when the account owner died. If an online service has similar terms, a workaround might be needed to preserve the rights of the account owner’s estate to data stored by the service.