Take-Away: Fiduciaries who ‘stand in the shoes’ of a ward or decedent need to be able to access the ward/decedent’s email account to fully carry out their fiduciary duties and account for all of an individual’s assets and debts. While service providers have historically been reluctant, if not obstinate,  to permit access to email accounts and electronic records, the law is now trending in favor of the fiduciary’s right to access the ward/decedent’s electronic communications.

Background: The federal Stored Communications Act (SCA) found at 18 U.S.C. 2701 et. seq. prohibits unauthorized third-parties from accessing communications stored by an internet service provider. As a result of this federal statute, most service providers refuse, or are reluctant, to provide access to a customer’s stored electronic communications to the customer’s fiduciaries. The SCA has produced a decade long  ‘war of words’ around who is authorized and what the customer agreed to in their service provider’s Terms of Service agreement (click ‘I consent’ and move on.)

Uniform Act: I reported in the past with regard to the Uniform Law Commissions’ proposed  Fiduciary Access to Digital Assets Act, and the provider industry’s continued refusal to cooperate with that uniform legislation. That impasse ultimately resulted in a compromise revised uniform act, that was eventually adopted in Michigan a year ago. But internet service providers continue to be slow to permit access to their stored files unless court orders, wills, trusts,  or durable powers of attorney contain ‘magic language’ (required in the compromise legislation) that expressly authorizes a fiduciary’s access to the principal/ward/decedent’s digital assets.

Federal Statute Interpretation: Last month the Massachusetts’s Supreme Judicial Court held that the SCA did not prohibit a Personal Representative who ‘stepped into the shoes of the decedent’ from accessing the decedent’s emails, since the Personal Representative had consented to the disclosures, but only after 7 years of litigation with Yahoo. While the Court did not expressly order Yahoo to make the disclosure to the Personal Representative, the import of the Court’s order was that the SCA, despite its chilling prohibition language, nonetheless permits such disclosures by the service provider. Ajemian v. Yahoo, Inc.

Conclusion: As you meet with your clients in your end-of-year meetings, be sure to remind them to update their Durable Powers of Attorney, Wills, and Trust to include the ‘magic language’ now required in the Revised Fiduciary Access to Digital Assets Act.