The Electronic Communications Privacy Act (and its part, the Stored Communication Act) can also be the limit of access to the deceased’s online data for the personal representative. The Stored Communications Act specifically regulates that for the service providers it is forbidden to disclose any data in connection of the electronic communication they provide. The Act’s privacy protections have been a significant obstacle for fiduciaries and family members seeking access to the contents of a deceased individual’s online user accounts. However this prohibition can be broken in defined exceptional situations. Thus, the electronic communication provider is the recipient of such communication (for example, if you did not send that email), if the deceased gave his or her lawful consent for the person requesting access or for the law enforcement offices (if it is likely that the data contains information for a crime).
The full text of the Stored Communications Act available here.
In these exceptional cases, the provider is required to disclose the deceased’s online data. On this issue the law contains a provision that regulates voluntary data disclosure. However, this can only be done by “service providers” that are not provide public electronic communication services. For this a good practical example can be an employer who can consider whether to release for the relatives the dead employee’s professional letters, and the private letters he or she sent or received on the company e-mail.
The Stored Communication Data Act was interpreted in the very new case of Ajemian v. Yahoo by the the Supreme Judicial Court of Massachusetts. The briefs filed in this case by the parties are available here.
The Supreme Court concluded that the personal representatives may provide lawful consent on the decedent’s behalf to the release of the contents of the email account.
This is a really significant action in the legal aspects of online data after death: the Supreme Court broadened the circle of people who can give lawful consent for the release of online data such as e-mail accounts.
Jim Lamm, the great expert of this topic dedicated a post to this subject on his blog, which you can reach here.