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SJC-12237

MARIANNE AJEMIAN, coadministrator,1 & another2 vs. YAHOO!, INC.

Norfolk. March 9, 2017. - October 16, 2017.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.3

Internet. Personal Property, Ownership. Executor and 

Administrator, Recovery of assets, Contracts. Contract, 

Service contract. Agency, What constitutes. Statute, 

Construction. Consent. Federal Preemption.

Complaint 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.

The 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.

 

1 Of the estate of John G. Ajemian.

2 Robert Ajemian, individually and as coadministrator of the 

estate of John G. Ajemian.

3 Justice Hines participated in the deliberation on this 

case prior to her retirement.
2

Marc J. Zwillinger (Jeffrey G. Landis also present) for the 

defendant.

Mason Kortz, for Naomi Cahn & others, amici curiae, 

submitted a brief.

James R. McCullagh & Ryan T. Mrazik, of Washington, & 

Joseph Aronson, for NetChoice & another, amici curiae, submitted 

a brief.

LENK, J. This 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, fortythree 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,4 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 

 

4 Because they share a last name, we refer to the members of 

the Ajemian family by their first names.
3

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.

We are 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.

In its 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. 

Accordingly, the judgment must be vacated and set aside, and the 

matter remanded to the Probate and Family Court for further
4

proceedings.

5

1. Background. In 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 (1974).

In August, 2002, Robert6 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,

7 Marianne sent Yahoo a written request for access 

 

5 We acknowledge the amicus briefs of Naomi Cahn, James D. 

Lamm, Michael Overing, and Suzanne Brown Walsh, and of NetChoice 

and the Internet Association.

6 The personal representatives assert that Robert set up the 

electronic mail (e-mail) account for the benefit of John, but 

that both brothers had the password to the account, and that, 

with John's permission, Robert used it occasionally. Since he 

used it rarely, he has forgotten the password. Yahoo!, Inc. 

(Yahoo), claims that John set up the account.

7 The Uniform Probate Code defines a personal representative 
5

to John's e-mail account. Yahoo declined to provide such 

access; it wrote that it would instead furnish subscriber 

information8 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 information.

In 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.

9 It remanded the matter to the 

 

as the "executor, administrator, successor personal 

representative, special administrator, special personal 

representative, and persons who perform substantially the same 

function under the law governing their status." G. L. c. 190B, 

§ 1-201 (37).

8 The subscriber information provided by Yahoo includes email "header" information -- i.e., the sender, addressees, and 

time stamp for e-mail messages -- for each e-mail message sent 

and received, and basic information about the subscriber.

9 The Probate and Family Court judge (the same judge who 

later ruled on the cross motions for summary judgment) dismissed 

the complaint on the grounds that a forum selection clause in 

the terms of service for the decedent's e-mail account required 

that the action be brought in California. He also determined 

that res judicata precluded the personal representatives from 

filing their claim in Massachusetts. The Appeals Court 

concluded that the doctrine of res judicata did not apply to the 

allegations in the complaint and that the forum selection and 
6

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).

On 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.

The 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 

 

limitations clauses in the terms of service could not be 

enforced against the personal representatives. See Ajemian v. 

Yahoo!, Inc., 83 Mass. App. Ct. 565, 572-573, 577 (2013). These 

issues are not before us on appeal.
7

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.

Robert and Marianne appealed, and we transferred the case 

to this court on our own motion.10

2. Whether the SCA prohibits Yahoo from disclosing the 

contents of the e-mail account. a. Statutory overview.

Congress enacted the SCA in 1986 "to update and clarify Federal 

privacy protections and standards in light of dramatic changes 

 

10 Yahoo did not cross-appeal as to the common-law property 

issue, and does not appear to have contested in the trial court 

or on appeal that, absent the terms of service, the decedent's 

estate would have a common-law property interest in the contents 

of the e-mail account.
8

in new computer and telecommunications technologies."11

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."

12 Commonwealth v. Augustine, 467 

 

11 The Stored Communications Act (SCA) was enacted as Title 

II of the broader Electronic Communications Privacy Act, Pub. L. 

No. 99-508, 100 Stat. 1848 (1986).

12 More broadly, the SCA serves to fill a potential gap in 

the protection afforded digital communications under the Fourth 

Amendment to the United States Constitution. When the SCA was 

enacted in 1986, the United States Supreme Court repeatedly had 

held that information revealed to third parties does not warrant 

Fourth Amendment protection because there is no reasonable 

expectation of privacy in something that already has been 

disclosed. See Smith v. Maryland, 442 U.S. 735, 745-746 (1979) 

(no reasonable expectation of privacy in telephone numbers that 

have been called from particular telephone because such 

information shared with third-party telephone company); United 

States v. Miller, 425 U.S. 435, 443 (1976) (banking records). 

Digital communications, including e-mail, are by nature shared 

with the Internet service providers that store them. See Kerr, 

A User's Guide to the Stored Communications Act, and a 

Legislator's Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 

1210 (2004) (Kerr). When Congress enacted the SCA, it did so, 

at least in part, in an effort to ensure that digital 

communications would be protected, in light of the United States 

Supreme Court's third-party doctrine. See S. Rep. No. 541, 99th 

Cong., 2d Sess., reprinted in 1986 U.S.C.C.A.N. 3555, 3557, 

citing Miller, supra ("because [digitally stored information] is 
9

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).

To achieve this purpose, the SCA provides a tripartite 

framework for protecting stored communications managed by 

electronic service providers.

13 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 

 

subject to control by a third party computer operator, the 

information may be subject to no constitutional privacy 

protection").

13 The SCA distinguishes between "electronic services --

electronic communication services [ECS] and remote computing 

services [RCS]" Matter of a Warrant to Search a Certain E-Mail 

Account Controlled & Maintained by Microsoft Corp., 829 F.3d 

197, 206 (2d Cir. 2016) (Matter of a Warrant). The act defines 

ECS as any service which allows users to "send or receive wire 

or electronic communications," and RCS as a service that 

provides "storage or processing services by means of an 

electronic communications system." 18 U.S.C. §§ 2510, 2711. 

Today, the distinction between ECS and RCS providers essentially 

has gone the way of the switchboard operator, as most service 

providers deliver both ECS and RCS services to subscribers. See 

Kerr, supra at 1215 (most network service providers provide both 

ECS and RCS services); Matter of a Warrant, supra. In any 

event, this distinction is not material here, as the 

restrictions against voluntary disclosure of the contents of 

communications to private parties apply to both equally. See 

18 U.S.C. § 2702. For convenience, we therefore refer to both 

types of providers as "service providers."
10

stored communications to it. See 18 U.S.C. § 2703.

b. Analysis. At 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"14 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 SCA.15

Yahoo 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 

 

14 The SCA defines "contents" as "any information concerning 

the substance, purport, or meaning of [a] communication." 

18 U.S.C. § 2510(8), as incorporated in 18 U.S.C. § 2711(1). 

The term has been construed to mean "a person's intended message 

to another (i.e., the 'essential part' of the communication, the 

'meaning conveyed,' and the 'thing one intends to convey')." In 

re Zynga Privacy Litig., 750 F.3d 1098, 1106 (9th Cir. 2014). 

The personal representatives here agree that they are seeking 

access to "contents," i.e., the decedent's stored 

communications.

15 The SCA affords a civil right of action to "any provider 

of electronic communication service, subscriber, or other person 

aggrieved by any violation of [the SCA] in which the conduct 

constituting the violation is engaged in with a knowing or 

intentional state of mind." 18 U.S.C. § 2707(a). Successful 

litigants are entitled to equitable relief, damages, and 

reasonable attorney's fees and costs. 18 U.S.C. § 2707(b).
11

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 turn.

i. Agency exception. The 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 
12

meaning, unless the statute contains a persuasive indication 

that Congress intended otherwise").

Under 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 
13

court retains the power to control the receiver"). Accordingly, 

the personal representatives do not fall under the SCA's agency

exception.

ii. Lawful consent exception. The 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 e-mail messages.

16 In Yahoo's view, the 

 

16 The question whether the e-mail messages are the property 

of the estate was raised in the personal representatives' 

complaint. As previously discussed, on remand from the Appeals 

Court, the Probate and Family Court judge addressed the 

question, in dicta, concluding that the e-mail messages were the 

property of the estate. Yahoo in essence leaves this holding 

unchallenged for purposes of this case, see note 10, supra, 

contending instead that the terms of service agreement is a 

binding contract that regulates access to the contents of the 

account and supersedes any common-law property rights asserted 

by the estate. Given this, we do not address the judge's ruling 

that the estate had a common-law property right in the contents 

of the account. We note, however, that numerous commentators 

have concluded that users possess a property interest in the 

contents of their e-mail accounts. See Darrow & Ferrera, Who 

Owns A Decedent's E-Mails: Inheritable Probate Assets or 

Property of the Network?, 10 N.Y.U. J. Legis. & Pub. Pol'y 281, 

311–312 (2007) (arguing that e-mail should be construed as 
14

lawful consent exception requires the user's actual consent --

i.e., express consent from a living user.

We thus are confronted with the novel question whether 

lawful consent for purposes of access to stored communications

properly is limited to actual consent, such that it would 

exclude a personal representative from consenting on a 

decedent's behalf.

17 We conclude that interpreting lawful 

 

probate asset). See also Arner, Looking Forward by Looking 

Backward: United States v. Jones Predicts Fourth Amendment 

Property Rights Protections in E-Mail, 24 Geo. Mason U. Civ. 

Rts. L.J. 349, 372-375 (2014); Lopez, Posthumous Privacy, 

Decedent Intent, and Post-Mortem Access to Digital Assets, 24 

Geo. Mason L. Rev. 183, 215–216 (2016); Watkins, Digital 

Properties and Death: What Will Your Heirs Have Access to After 

You Die?, 62 Buff. L. Rev. 193, 198–200 (2014).

17 There is no Federal or State case law of which we are 

aware construing the meaning of lawful consent in this context. 

The only potentially relevant case, cited by the parties, is In 

re Request for Order Requiring Facebook, Inc., to Produce 

Documents & Things, 923 F. Supp. 2d 1204 (N.D. Cal. 2012) (In re 

Facebook). That case concerned the Facebook account of a young 

woman who died after falling from the twelfth floor of an 

apartment building. Id. at 1205. While the police apparently 

came to the conclusion that her death was a suicide, the woman's 

parents disputed this account and sought to access her Facebook 

account to present evidence of her state of mind in the days 

leading up to her death. Id. The parents filed an ex parte 

application to subpoena records from her Facebook account. Id. 

Facebook moved to quash the subpoena on the ground that it 

violated the SCA. Id. The District Court judge ruled in favor 

of Facebook on the ground that "civil subpoenas may not compel 

production of records from providers like Facebook." Id. at 

1206. The judge did, however, note in dictum that "nothing 

prevents Facebook from concluding on its own that [the parents] 

have standing to consent on [the woman's] behalf and providing 

the requested materials voluntarily." Id.

Yahoo emphasizes the holding of the decision quashing the 
15

consent in such a manner would preclude personal representatives 

from accessing a decedent's stored communications and thereby 

result in the preemption of State probate and common law. 

Absent clear congressional intent to preempt such law, however, 

there is a presumption against such an interpretation. See 

Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 151 (2001) 

("[R]espondents emphasize that the Washington statute involves 

both family law and probate law, areas of traditional [S]tate 

regulation. There is indeed a presumption against pre-emption 

in areas of traditional [S]tate regulation such as family law"); 

United States v. Texas, 507 U.S. 529, 534 (1993) ("[s]tatutes 

which invade the common law . . . are to be read with a 

presumption favoring the retention of long-established and 

 

subpoena on the ground that it violated the SCA. Id. That 

holding is inapposite here, however, as the issue before us is 

not whether the personal representatives may compel Yahoo to 

provide them access to the decedent's e-mail account, but 

whether Yahoo may provide them such access without violating the 

terms of the SCA. The personal representatives emphasize the 

dictum at the end of the decision in support of their contention 

that "nothing prevents" Yahoo from concluding that they may 

lawfully consent on the decedent's behalf. Id.

Yahoo also points to a decision issued after argument in 

this case concerning an executor's attempt to provide lawful 

consent on behalf of a decedent. See PPG Indus., Inc. vs. 

Jiangsu Tie Mao Glass Co., Ltd., U.S. Dist. Ct., No. 2:15-CV965, slip op. at 1-2 (W.D. Pa. July 21, 2017). Like In re 

Facebook, however, that decision does not answer the question 

before us. See id. at 4 ("[T]he [c]ourt need not decide whether 

[the executor's consent] to production of [the decedent's] 

emails is sufficient to establish 'lawful consent' under 

§ 2702[b][3]").
16

familiar principles, except when a statutory purpose to the 

contrary is evident" [citation omitted]). The statutory 

language and legislative history of the lawful consent exception

in the SCA do not evidence such a congressional intent.

A. Presumption against preemption. In interpreting a 

Federal statute, we presume that Congress did not intend to 

intrude upon traditional areas of State regulation or State 

common law unless it demonstrates a clear intent to do so. See 

Egelhoff, 532 U.S. at 151; Texas, 507 U.S. at 534; Jones v. Rath 

Packing Co., 430 U.S. 519, 525 (1977) ("we start with the

assumption that the historic police powers of the States were 

not to be superseded by the Federal Act unless that was the 

clear and manifest purpose of Congress" [citation omitted]);

Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952) ("Statutes 

which invade the common law . . . are to be read with a 

presumption favoring the retention of long-established and 

familiar principles, except when a statutory purpose to the 

contrary is evident"). This presumption ensures that the 

"[F]ederal-[S]tate balance . . . will not be disturbed 

unintentionally by Congress or unnecessarily by the courts"

(citation omitted). See Jones, supra.

Congress enacted the SCA against a backdrop of State 

probate and common law allowing personal representatives to take 
17

possession of the property of the estate.18 To construe lawful 

 

18 When the SCA was enacted, the probate laws of a majority 

of States allowed a personal representative to take control of 

the property of a decedent for the purpose of marshalling the 

assets of the estate. See, e.g., Alaska Stat. § 13.16.380, 

inserted by 1972 Alaska Sess. Laws, c. 78, § 1 (every personal 

representative has right to take possession or control of 

decedent's property); Ariz. Rev. Stat. Ann. § 14-3709, inserted 

by 1973 Ariz. Sess. Laws, c. 75, § 4; Ark. Code Ann. § 28-49-

101, as amended by 1961 Ark. Acts, Act 424, § 1; Idaho Code Ann. 

§ 15-3-709, inserted by 1971 Idaho Sess. Laws, c. 111, § 1; Ind. 

Code § 29-1-13-1, as amended through 1979 Ind. Acts, P.L. 268, 

§ 45; Iowa Code § 633.350, inserted by 1963 Iowa Acts, c. 326, 

§ 350; Kan. Stat. Ann. § 59-1401, as amended through 1985 Kan. 

Sess. Laws, c. 191, § 20; Me. Rev. Stat. tit. 18-A, § 3-709, 

inserted by 1979 Me. Laws, c. 540, § 1; Md. Code Ann., Est. & 

Trusts § 7-102, inserted by 1974 Md. Laws, c. 11, § 2; Mich. 

Comp. Laws § 700.601, as amended by 1979 Mich. Pub. Acts, no. 

51; Minn. Stat. § 524.3-709, inserted by 1974 Minn. Laws, 

c. 442, art. 3, § 524.3-709; N.J. Stat. Ann. § 3B:10-29, 

inserted by 1981 N.J. Laws, c. 405, § 3B; Okla. Stat. tit. 58, 

§ 290, inserted by 1910 Okla. Sess. Laws § 6322; Or. Rev. Stat. 

§ 114.225, inserted by 1969 Or. Laws, c. 591, § 121; 20 Pa. 

Cons. Stat. § 3311, inserted by 1972 Pa. Laws, P.L. 508, no. 

164, § 2; Utah Code Ann. § 75-3-708, inserted by 1975 Utah Laws, 

c. 150, § 4; Wyo. Stat. Ann. § 2-7-401, as appearing in 1980 

Wyo. Sess. Laws, c. 54, § 1. See also Uniform Probate Code § 3-

709 (1969), http://www.uniformlaws.org/shared/docs

/probate%20code/upc_scan_1969.pdf [https://perma.cc/SG32-ZUHY]

("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, except that 

any real property or tangible personal property may be left with 

or surrendered to the person presumptively entitled thereto 

unless or until, in the judgment of the personal representative, 

possession of the property by him will be necessary for purposes 

of administration"); Uniform Law Commission, Probate Code, 

http://www.uniformlaws.org/Act.aspx?title=Probate%20Code

[https://perma.cc/EZ9C-HURN] (Uniform Probate Code has been 

adopted by Virgin Islands and eighteen States, including 

Colorado, Florida, Hawaii, Massachusetts, Montana, Nebraska, New 

Mexico, North Dakota, South Carolina, and South Dakota); Uniform 

Probate Code, 8 U.L.A., Index, at 1 (Master ed. 2013).

At common law, personal representatives also have the right 
18

consent as being limited to actual consent, thereby preventing 

personal representatives from gaining access to a decedent's 

stored communications, would significantly curtail the ability 

of personal representatives to perform their duties under State

probate and common law. Most significantly, this interpretation 

would result in the creation of a class of digital assets --

stored communications -- that could not be marshalled.19 

Moreover, since e-mail accounts often contain billing and other 

financial information, which was once readily available in paper 

form, an inability to access e-mail accounts could interfere 

 

to take possession of a decedent's property on behalf of the 

estate. See, e.g., Goodwin v. Jones, 3 Mass. 514, 518 (1807) 

(personal representative has right at common law to take 

possession of decedent's property); Matter of the Estate of 

Heinze, 224 N.Y. 1, 8 (1918) (court-appointed administrator has 

power over property of decedent under common law); Felton v. 

Felton, 213 N.C. 194, 194 (1938) (court-appointed administrators 

possess "legal title to the personal assets of their intestate's 

estate" pursuant to common law).

19 See Banta, Inherit the Cloud: The Role of Private 

Contracts in Distributing or Deleting Digital Assets at Death, 

83 Fordham L. Rev. 799, 852 (2014) ("Email accounts and social 

networking sites are the new letters and personal records of 

today's society. The historical importance of our digital 

records cannot be underestimated"); Edwards & Harbinja, 

Protecting Post-Mortem Privacy: Reconsidering the Privacy 

Interests of the Deceased in A Digital World, 32 Cardozo Arts & 

Ent. L.J. 83, 117 (2013) ("More than ever before, 'ordinary 

people,' leave digital relics which may be highly personal and 

intimate, and are increasingly preserved and accessible in large 

volume after death"); Lamm, Kunz, Riehl, & Rademacher, The 

Digital Death Conundrum: How Federal and State Laws Prevent 

Fiduciaries from Managing Digital Property, 68 U. Miami L. Rev. 

385, 389–390 (2014) ("A 2011 survey found that U.S. consumers 

valued their digital assets, stored across multiple digital 

devices, at an average of $55,000 per person").
19

with the management of a decedent's estate. See Banta, Inherit 

the Cloud: The Role of Private Contracts in Distributing or 

Deleting Digital Assets at Death, 83 Fordham L. Rev. 799, 811 

(2014) (noting importance of access to online accounts to 

individuals trying to manage deceased person's estate).

Nothing in the statutory language or the legislative 

history of the SCA evinces a clear congressional intent to 

intrude upon State prerogatives with respect to personal 

representatives of a decedent's estate.

B. Statutory language. The SCA does not define the term 

"lawful consent," and, unlike the hundreds of years of common 

law defining the meaning of the term "agent," there is no 

similar State common-law backdrop with respect to the phrase 

"lawful consent." Accordingly, we begin with the ordinary

meaning of the words. See BedRoc Ltd., LLC v. United States, 

541 U.S. 176, 183 (2004) (statutory interpretation inquiry 

"begins with the statutory text"). "[C]onsent" is defined as 

"[a] voluntary yielding to what another proposes or desires." 

Black's Law Dictionary (10th ed. 2014). "[L]awful" is defined 

as "[n]ot contrary to law; permitted or otherwise recognized by 

law." Id. at 1018. The plain meaning of the term "lawful 

consent" thus is consent permitted by law.

Nothing in this definition would suggest that lawful 

consent precludes consent by a personal representative on a 
20

decedent's behalf. Indeed, personal representatives provide 

consent lawfully on a decedent's behalf in a variety of 

circumstances under both Federal and common law. For example, a 

personal representative may provide consent to the disclosure of 

a decedent's health information pursuant to the Health Insurance 

Portability and Accountability Act of 1996, 42 U.S.C. §§ 1320d 

et seq. (HIPAA). See 45 C.F.R. § 164.502. In like manner, a

personal representative may provide consent on a decedent's 

behalf to a government search of a decedent's property. See 

United States v. Hunyady, 409 F.3d 297, 304 (6th Cir.), cert. 

denied, 546 U.S. 1067 (2005).

At common law, a personal representative also may provide 

consent on a decedent's behalf to the waiver of a number of 

rights, including the attorney-client,

20 physician-patient,21 and 

 

20 See, e.g., Sullivan v. Brabazon, 264 Mass. 276, 286 

(1928) (personal representative may waive decedent's attorneyclient privilege); Marker v. McCue, 50 Idaho 462 (1931) (same); 

Buuck v. Kruckeberg, 121 Ind. App. 262, 271 (1950) (same); 

Holyoke v. Holyoke's Estate, 110 Me. 469 (1913) (same); Grand 

Rapids Trust Co. v. Bellows 224 Mich. 504, 510-511 (1923) 

(same); Canty v. Halpin, 294 Mo. 96 (1922) (same); In re 

Parker's Estate, 78 Neb. 535 (1907) (same); Martin v. Shaen, 22 

Wash. 2d 505, 512 (1945) (same).

21 See Calhoun v. Jacobs, 141 F.2d 729, 729 (D.C. Cir. 1944) 

(personal representative may waive decedent's patient-physician 

privilege); Schirmer v. Baldwin, 182 Ark. 581 (1930) (same); 

Morris v. Morris, 119 Ind. 341 (1889) (same); Denning v. 

Butcher, 91 Iowa 425 (1894) (same); Fish v. Poorman, 85 Kan. 237 

(1911) (same); N.Y. Life Ins. Co. v. Newman, 311 Mich. 368, 373 

(1945) (same); In re Estate of Koenig, 247 Minn. 580, 588 (1956) 

(same); In re Gray's Estate, 88 Neb. 835 (1911); Grieve v. 
21

psychotherapist-patient privilege.22 Under the Uniform Probate 

Code,23 a personal representative may sell a decedent's property,

Uniform Probate Code § 3-715(23); bring claims on the decedent's 

behalf, id. at § 3-715(22); and vote the decedent's stocks, id. 

at § 3-715(12). Thus, a construction of lawful consent that 

allows personal representatives to accede to the release of a 

decedent's stored communications accords with the broad 

authority of a lawfully appointed personal representative to act 

on behalf of a decedent.

Finally, had Congress intended lawful consent to mean only

actual consent, it could have used language such as "actual 

consent" or "express consent" rather than "lawful consent." 

See, e.g., 18 U.S.C. § 2721(a)(2) (prohibiting State departments 

of motor vehicles from releasing personal information "without

the express consent of the person to whom such information 

applies" [emphasis supplied]); Central Bank of Denver, N.A. v. 

First Interstate Bank of Denver, N.A., 511 U.S. 164, 176 (1994) 

(Congress knew how to provide for liability for aiding and 

 

Howard, 54 Utah 225 (1919) (same).

22 See Dist. Attorney for the Norfolk Dist. v. Magraw, 417 

Mass. 169, 172-174 (1994) (personal representative may waive 

psychotherapist-patient privilege); Rittenhouse v. Superior 

Court of Sacramento County, 235 Cal. App. 3d 1584, 1588 (1991) 

(same).

23 See note 18, supra (listing jurisdictions that have 

adopted Uniform Probate Code).
22

abetting but chose not to do so); Pinter v. Dahl, 486 U.S. 622, 

650 (1988) ("When Congress wished to create [substantial factor 

liability for an offense], it had little trouble doing so"); 

Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 734 (1975) 

("When Congress wished to provide a remedy to those who neither 

purchase nor sell securities, it had little trouble doing so 

expressly").

Accordingly, nothing in the language of the "lawful 

consent" exception evinces a clear congressional intent to 

preempt State probate and common law allowing personal 

representatives to provide consent on behalf of a decedent.

C. Legislative history. To the extent there is any 

ambiguity in the statutory language, we turn to the legislative 

history of the SCA. See Block v. Community Nutrition Inst., 467 

U.S. 340, 349 (1984) (all presumptions used in interpreting 

statutes may be overcome by "specific legislative history that 

is a reliable indicator of congressional intent"); United States

v. Awadallah, 349 F.3d 42, 51 (2d Cir. 2003), cert. denied, 543 

U.S. 1056 (2005) (court may look to statute's legislative 

history where text is ambiguous). The reports of the House and 

Senate committees on the judiciary shed light on the purpose of 

the SCA and on 18 U.S.C. § 2702 in particular. The Senate 

committee report explains that the purpose of the Electronic 

Communications Privacy Act (ECPA), the broader Federal statute 
23

that includes the SCA, is to "protect against the unauthorized 

interception of electronic communications" and 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. at 3555. With regard to the ECPA, the 

House committee report states,

"The purpose of the legislation is to amend title 18 

of the United States Code to prohibit the interception of 

certain electronic communications; to provide procedures 

for interception of electronic communications by [F]ederal 

law enforcement officers; to provide procedures for access 

to communications records by [F]ederal law enforcement 

officers; to provide procedures for [F]ederal law 

enforcement access to electronically stored communications; 

and to ease certain procedural requirements for 

interception of wire communications by [F]ederal law 

enforcement officers."

H.R. Rep. No. 647, 99th Cong., 2d Sess., at 16 (1986). This 

stated purpose demonstrates congressional concern with the 

protection of stored communications against "unauthorized

interception" by "overzealous law enforcement agencies, 

industrial spies and private parties." S. Rep. No. 541, 99th 

Cong., 2d Sess., reprinted in 1986 U.S.C.C.A.N. at 3555, 3557. 

It does not suggest congressional concern over personal 

representatives accessing stored communications in conjunction 

with their duty to manage estate assets.24

 

24 Given the nascent state of digital technology at the time 

of the SCA's enactment in 1986, the congressional silence on the 
24

Beyond Congress's overarching purpose in passing the SCA, 

the House committee report notes that "lawful consent" "need not

take the form of a formal written document of consent." H.R.

Rep. No. 647, 99th Cong., 2d Sess., at 66. Instead, such

consent "might be inferred to have arisen from a course of 

dealing . . . -- e.g., where a history of transactions between 

the parties offers a basis for reasonable understanding that a 

consent to disclosure attaches to a particular class of 

communications." Id. Moreover, lawful consent could "flow from 

a user having had a reasonable basis for knowing that disclosure 

or use may be made with respect to a communication, and having 

taken action that evidences acquiescence to such disclosure or 

use -- e.g. continued use of such an electronic communication 

system." Id.

Congress thereby intended lawful consent to encompass 

certain forms of implicit consent, such as those that arise from

a course of dealing. At the very least, this suggests that 

 

impact of the SCA on personal representatives is understandable. 

When the statute was enacted, the New York Times had mentioned 

the Internet a total of once. See Matter of a Warrant, 829 F.3d 

at 206, quoting Rosenzweig, Wizards, Bureaucrats, Warriors, and 

Hackers: Writing the History of the Internet, 103 Am. Hist. 

Rev. 1530, 1530 (1998). The World Wide Web had yet to be 

invented, and the use of e-mail by the general public was years 

in the future. Matter of a Warrant, supra. As one commentator 

noted, Congress at that time did not have any reason to foresee 

the development of digital communications "as a set of assets 

capable of inheritance or facilitating access to other assets." 

See Naomi Cahn, Probate Law Meets the Digital Age, 67 Vand. L. 

Rev. 1697, 1715 (2014).
25

Congress did not intend to place stringent limitations on lawful 

consent even for living users. In sum, we discern nothing in 

the legislative history of the SCA to indicate a clear intent by 

Congress to limit lawful consent to "actual consent," such that 

it could thereby intrude upon State probate and common law.

Absent such clear congressional intent, "we . . . have a 

duty to accept the reading [of the statute] that disfavors preemption." See Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 

(2005). Because we must presume, then, that Congress did not 

intend the SCA to preempt such State laws, we conclude that the 

personal representatives may provide lawful consent on the 

decedent's behalf to the release of the contents of the Yahoo email account.

This does not, however, require Yahoo to divulge the 

contents of the decedent's communications to the personal 

representatives. We conclude only that the SCA does not stand 

in the way of Yahoo doing so and that summary judgment for Yahoo 

on this basis was not warranted.

25

 

25 The Legislature is, of course, not precluded from 

regulating the inheritability of digital assets. Indeed, the 

Revised Uniform Fiduciary Access to Digital Assets Act, which 

addresses this issue, has been enacted by a majority of States, 

including more than a dozen that have done so in 2017, and eight 

more States currently are considering whether to do so. See 

Fiduciary Access to Digital Assets Act, Revised (2015), 

http://www.uniformlaws.org/Act.aspx?title=Fiduciary%20Access%20

to%20Digital%20Assets%20Act,%20Revised%20%282015%29 [https://

perma.cc/9BAP-3WUW].
26

3. Terms of service agreement. Yahoo maintains that the 

allowance of its motion for summary judgment also was 

appropriate on the independent ground that the terms of service 

agreement, binding upon the decedent and his estate, confers on 

it the right to refuse the personal representatives access to 

the contents of the account. Otherwise put, Yahoo contends that 

the terms of service trump the personal representatives' 

asserted property interest.

In support of this position, Yahoo relies on the 

"termination provision" in the terms of service, which purports 

to grant Yahoo nearly unlimited rights over the contents of the 

e-mail account. That provision states:

"You agree that Yahoo, in its sole discretion, may 

terminate your password, account (or any part thereof) or 

use of the Service, and remove and discard any Content 

within the Service, for any reason, including, without 

limitation, for lack of use or if Yahoo believes that you 

have violated or acted inconsistently with the letter or 

spirit of the [terms of service]. Yahoo may also in its 

sole discretion and at any time discontinue providing the 

Service, or any part thereof, with or without notice. You 

agree that any termination of your access to the Service 

under any provision of [these terms of service] may be 

effected without prior notice, and acknowledge and agree 

that Yahoo may immediately deactivate or delete your 

account and all related information and files in your 

account and/or bar any further access to such files or the 

Service. Further, you agree that Yahoo shall not be liable 

to you or any third-party for any termination of your 

access to the Service."

The express language of the termination provision, if 

enforceable, thus purports to grant Yahoo the apparently 
27

unfettered right to deny access to the contents of the account 

and, if it so chooses, to destroy them rather than provide them 

to the personal representatives.26

Because the record before him was not adequate to establish 

the essentials of valid contract formation, the judge was unable 

to determine -- even as an initial matter -- whether the terms 

of service agreement could constitute an enforceable contract.

27 

The judge observed that Yahoo had not established that a 

 

26 Yahoo's decision not to grant access to the contents of 

the account and its asserted right to destroy such contents 

(which it apparently has preserved thus far) is grounded in the 

substantive rights it claims to have under the terms of service 

agreement. It has forborne the exercise of those asserted 

rights during the pendency of this litigation, in which the 

enforceability of that contract is squarely at issue. See note 

27, infra. To the extent that the dissent may suggest 

otherwise, we are unaware of any reason to believe that, upon 

remand, were the agreement in whole or pertinent part to be 

deemed unenforceable for any reason, Yahoo would engage in acts 

of spoliation or otherwise fail to comply with court orders 

requiring access to the contents of the account.

27 The record does not include the parties' legal memoranda 

supporting their cross motions for summary judgment. 

Nonetheless, we infer from the judge's ruling, and the parties' 

briefs on appeal, that the focus of the issue regarding the 

enforceability of the agreement was as to matters of contract 

formation. Other considerations, such as consistency with 

public policy or any putative unconscionability of the terms of 

service, had yet to be reached. Nor does it appear that any 

dispute was raised regarding the meaning of the termination 

provision. We note further that Yahoo has agreed not to 

exercise its asserted rights under the terms of service "to 

remove and discard" any content of the e-mail account during the 

pendency of this litigation. The terms of service, however, 

include a provision stating that "[t]he failure of Yahoo to 

exercise or enforce any right or provision of the [terms of 

service] shall not constitute a waiver of such right or 

provision."
28

"meeting of the minds" had occurred with respect to the terms of 

service, including whether they had been communicated to, and 

accepted by, the decedent. The judge accordingly denied Yahoo's 

motion for summary judgment on this alternative ground. We 

discern no error in this regard, and remand the matter for 

further proceedings.

4. Conclusion. The judgment is vacated and set aside. 

The matter is remanded to the Probate and Family Court for 

further proceedings consistent with this opinion.

So ordered.
GANTS, C.J. (concurring in part and dissenting in part). I 

agree with the court that the Stored Communications Act (SCA), 

18 U.S.C. §§ 2701 et seq., does not prohibit Yahoo!, Inc. 

(Yahoo), from disclosing to the personal representatives of an 

estate the electronic mail (e-mail) messages in the decedent's 

account so that the personal representatives may perform their 

duties under our State probate and common law. I also agree 

with the court that the judge's allowance of summary judgment on 

behalf of Yahoo must be vacated. I write separately because, 

where there were cross motions for summary judgment, I would go 

beyond the court's order of remand and issue an order directing 

judgment in favor of the personal representatives on their 

motion for summary judgment.

In deciding the cross motions for summary judgment, the 

Probate and Family Court judge made two rulings of law. First, 

he ruled that "the content of the decedent's e-mails are 

property of the [e]state; there is no genuine issue of material 

fact as to this issue." Second, he ruled that "the SCA 

prohibits [Yahoo] from divulging the contents of the decedent's 

e-mails to the [p]ersonal [r]epresentatives." Yahoo does not 

challenge the first ruling on appeal. This court has determined 

that the second ruling is an error of law. However, rather than 

order that judgment issue in favor of the personal 

representatives on their complaint seeking a declaration that 
2

they are entitled to complete access to the contents of the 

decedent's e-mail account, the court orders that the matter be 

remanded to the Probate and Family Court to adjudicate disputed 

issues of material fact as to whether the "terms of service" 

agreement constitutes a binding, enforceable contract that 

"trump[s] the personal representatives' asserted property 

interest" in the contents of the account. Ante at .

The order of remand is unnecessary. I recognize that there 

remain disputed issues of fact as to whether the terms of 

service agreement was executed by the decedent and binds the 

estate, and unresolved disputed issues of law as to whether it 

would be contrary to public policy to enforce an agreement

comprised of eleven pages of boilerplate language that a 

prospective user must accept "as is" before Yahoo will grant the 

user access to its service. Therefore, for purposes of this 

opinion, I assume for the sake of argument that the terms of 

service agreement is both binding and enforceable against the 

estate. But even with this assumption, when one looks closely 

at the specific section (section thirteen, governing 

termination) that Yahoo claims is relevant to the issue on 

appeal, it cannot as a matter of law yield a judgment in favor 

of Yahoo.

Section thirteen allows Yahoo "for any reason" to terminate 

a user's password, account, or use of the service, and to 
3

"remove and discard any Content within the service."1 It further 

provides that Yahoo is not liable "for any termination of your 

access to the Service." Yahoo does not and cannot contend that 

the authority claimed in this termination provision gives it any 

ownership interest in a user's content. In fact, section eight 

of the terms of service provides, "Yahoo does not claim 

ownership of Content you submit or make available for inclusion 

on the Service." All that section thirteen does is allow Yahoo 

to discard any of the content owned by the user (or, here, the 

estate of the user) on its servers without risk of liability for 

doing so. Thus, it would permit Yahoo to discard e-mail 

messages in a terminated account without fear that it will be 

held liable if, many years later, the user's estate seeks access 

to those messages.

The issue on appeal, however, is not whether Yahoo is 

liable to the estate for content that it previously discarded, 

but whether a court may order Yahoo to provide the plaintiffs 

with content it continues to retain. The provision cannot 

reasonably be interpreted to mean that Yahoo has the contractual 

right to destroy a user's e-mail messages after the user 

initiates a court action to obtain the messages. Such 

destruction would violate our prohibition against the spoliation 

 

1 See ante at for the full text of section thirteen of 

the "terms of service" agreement.
4

of evidence. See Keene v. Brigham & Women's Hosp., Inc., 439 

Mass. 223, 234 (2003) (doctrine of spoliation of evidence "is 

based on the premise that a party who has negligently or 

intentionally lost or destroyed evidence known to be relevant 

for an upcoming legal proceeding should be held accountable for 

any unfair prejudice that results"). Nor can it justify the 

destruction of such e-mail messages after a court orders that 

they be provided to the user or his or her personal 

representatives. Such destruction would constitute contempt of 

a court order.

If the motion judge on remand were to rule that this 

provision contractually allows Yahoo to destroy e-mail messages 

in its possession that are owned by a user (or a personal 

representative of the estate of the user) after the user has 

filed a court action to obtain access to these messages, we 

would surely reverse that ruling. So why remand the case to 

permit that possibility?

Not only is the remand unnecessary, but it also is unfair 

to the plaintiffs. The additional cost of further litigation is 

a financial pinprick to a Web services provider such as Yahoo, 

but it is a heavy financial burden on the assets of an estate, 

even a substantial estate. The plaintiffs should not have to 

spend a penny more to obtain estate property in the possession 

of Yahoo that they need to administer the estate.