People often wonder what happens to someone’s Stored digital data such as emails, electronic banking, or facebook accounts if the person dies. This has been a vexing problem for surviving family members who wish to read or save that data as part of the family legacy. The federal Stored Communications Act (“SCA”), which is 18 USC 2701 et seq,  prohibits disclosure of the content of stored digital data  except for  specified exceptions. The licensee/user signs a Terms of Service agreement when the account is established or as periodically required. Under the federal Act at section (c)(2), one of the exceptions is consent “by a user of that service with respect to a communication of or intended for that user.” If the user is deceased, who is considered “the user?” A recent Massachusetts case illustrates the issue. Estate of Ajemian vs. Yahoo.

     John Ajemian died without a Will following a bicycle accident. Two people were appointed as the co-administrators of his Estate. They contacted Yahoo to request access to John’s e-mail account administered by Yahoo. In denying the request, Yahoo relied on  the terms of service governing the account and also on the Stored Communications Act. The co-administrators filed suit to compel Yahoo to give them access to the account. The probate Court entered judgment for Yahoo, but on appeal,  the Massachusetts Supreme Judicial Court reversed and remanded., holding that if the requester is authorized to consent, and does consent to the disclosure, then the Act does not prohibit disclosure of the contents from the digital assets. There was a separate issue concerning whether  the terms of service agreement that had been signed by the user (John) provided Yahoo with any discretion to deny the requested access.

When Wills and trusts are being written, the section giving powers to the designated executor or Trustee can be written so as to include special authority that is otherwise lawful and would be useful for a given situation. Similarly, a Durable Power of Attorney can include special provisions related to access to digitally-stored information or other important special powers.

Call us for assistance in the preparation of personalized estate plans, advice to trustees, agents and other fiduciaries,  and  interpretation of estate plan documentation  … 732-382-6070

 A post by Linda Ershow-Levenberg, Esq. for Fink Rosner Ershow-Levenberg Blog.

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