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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 (e-

mail) account.   Such an account is a form of property often

referred to as a "digital asset."     On August 10, 2006, forty-

three 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 e-
mail "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 two-

fold:   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 e-

mail 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-CV-
965, 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 attorney-
client 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 pre-

emption."    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 e-

mail 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.
