The Case Against Access to Decedents’ E-mail: Password Protection as an Exercise of the Right to Destroy

Abstract

There is currently substantial national momentum in state legislatures to grant personal representatives access to decedents’ e-mail as a part of a larger grant of access to all digital assets. In this Article, I make the case against such a default rule granting access to decedents’ e-mail. In the past nine years, Yahoo has not softened its position towards those who seek access to a Yahoo user’s e-mail post mortem. However, the other two largest e-mail service providers have more lenient policies on access to decedents’ e-mail. In this Article, I examine the service providers’ perspectives on access to decedents’ e-mail. Commentators are overwhelmingly supportive of access by personal representatives. They typically position Internet service providers, those providers’ terms of service, and secret passwords chosen by the deceased as stumbling blocks to efficient estate administration, the preservation of unique and irreplaceable sentimental and historical data, and the transfer of valuable property into the hands of deserving family members. Beginning with Connecticut in 2005, seven states have enacted statutes granting personal representatives some level of access to decedents’ digital assets, including e-mail. As of October 2013, about a dozen additional states have pending legislation that grants personal representatives access to decedents’ e-mail. Additionally, in January 2012, the Uniform Law Commission created a committee to “study the need for a feasibility of state legislation on fiduciary powers and authority to access digital information.” The committee is now operating with the mission to draft an act that “will vest fiduciaries with at least the authority to manage and distribute digital assets, copy or delete digital assets, and access digital assets,” and has developed a working draft that grants personal representatives access to password-protected e-mail accounts of the deceased (the Draft Uniform Act). I highlight the problems with, and new issues raised by, the access laws, proposed laws, and the Draft Uniform Act, and explore the problems with the arguments for access to decedents’ e-mail. I then assert that the commentary, statutes, and proposed legislation fail to adequately consider decedents’ intent, or probable intent, which is the bedrock of estate jurisprudence. I argue that storing e-mail in a password-protected account, coupled with nondisclosure of that password by the deceased, is an exercise of a decedent’s right to destroy his or her own property. Further, I maintain that state law and the Draft Uniform Act granting access to decedents’ e-mail inappropriately infringe upon this right. I conclude in Part V with a recommendation for an alternative default rule.