Can an executor obtain email contents without the owner's consent?
Key takeaway
Sometimes: In Minnesota, for example, an executor may seek disclosure through court direction rather than the deceased user's consent, but must satisfy statutory documentation requirements and applicable federal disclosure restrictions, other states differ.
The documentation requirement matters even when seeking court direction. The Minnesota provision still calls for a record evidencing consent unless the user provided direction through an online tool.
When the Minnesota example applies
In Minnesota, for example, the statute covers a personal representative acting for a deceased user and applies to a custodian if the user resided in Minnesota at death, other states differ.
It excludes an employer's digital asset used by an employee in the ordinary course of the employer's business.
Documents for a request for email contents
In Minnesota, for example, the deceased user's consent or court direction must accompany the prescribed documentation for disclosure to the personal representative, other states differ.
The representative must provide:
- A written disclosure request in physical or electronic form.
- A certified copy of the user's death certificate.
- A certified copy of the representative's letter of appointment, a court order, or an Affidavit of Collection of Personal Property executed under the Minnesota provision identified in Sources.
- Unless the user provided direction through an online tool, a copy of the user's will, trust, power of attorney, or other record evidencing consent to disclosure of communication contents.
If requested by the custodian, the statute also lists these alternatives:
- A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account.
- Evidence linking the account to the user.
- A court finding establishing one of the alternatives below.
The court finding alternatives are that:
- The user had a specific account with the custodian, identifiable through the account information described above.
- Disclosure of the user's communication contents would not violate the specified federal communications laws identified in Sources or other applicable law.
- The user consented to disclosure of communication contents, unless the user provided direction through an online tool.
- Disclosure of the user's communication contents is reasonably necessary for administration of the estate.
For a legal consultation, gather the account identifier, estate appointment documents, and any recorded account directions. Ask counsel to examine both the court direction question and the consent documentation requirement.
Federal privacy restrictions still apply
Federal law prohibits specified providers serving the public from knowingly divulging protected communication contents, subject to statutory exceptions.
For an electronic communication service, the protection concerns communications in electronic storage by that service.
For a remote computing service, the communication must be carried or maintained on behalf of a subscriber or customer and received through electronic transmission, including communications created by processing transmitted communications.
It must be held solely for storage or computer processing, with the provider unauthorized to access its contents to provide other services.
Relevant exceptions include disclosure to an addressee, intended recipient, or their agent, disclosure authorized by the federal provisions identified in Sources, and disclosure with the specified lawful consent.
The consent exception covers the originator, an addressee or intended recipient, or the subscriber for a remote computing service. These are not the only statutory exceptions.
A state appointment or state court order does not itself establish that a federal exception is satisfied.
Two related terms
In Minnesota, for example, a catalogue of electronic communications identifies correspondents, communication dates and times, and electronic addresses, other states differ. It is distinct from communication contents.
In Minnesota, for example, a custodian is a person that carries, maintains, processes, receives, or stores a user's digital asset, other states differ.
Frequently asked questions
Does an executor's appointment create expanded account rights?
No. In Minnesota, for example, the statute preserves the user's and custodian's contractual access and use rights and gives a fiduciary no expanded rights beyond the user's rights, other states differ.
User direction and federal law may modify or eliminate access. Terms of service may also do so if the user provided no direction under the Minnesota disclosure direction provision identified in Sources.
What counts as communication contents in the Minnesota example?
In Minnesota, for example, contents concern a user's sent or received communication's substance or meaning, held in the specified public service's electronic storage or carriage and not readily accessible to the public, other states differ.
The service condition requires electronic storage by a custodian providing an electronic communication service to the public, or carriage or maintenance by a custodian providing a remote computing service to the public.
Sources
- Minnesota chapter 521A. Sections 521A.02 and 521A.03 address definitions and applicability. Section 521A.05 preserves existing rights and refers to directions under section 521A.04.
- Minnesota section 521A.07. This provision addresses a deceased user's communication contents and required documentation. Its affidavit reference is section 524.3-1201. Its court finding alternative concerning lawful disclosure identifies 18 U.S.C. §2701 et seq., 47 U.S.C. §222, and other applicable law.
- 18 U.S.C. §2702. Subsections (a)(1) and (a)(2) address protected contents. Subsections (b)(1), (b)(2), and (b)(3) contain the exceptions discussed here. The authorization cross references include sections 2517, 2511(2)(a), and 2703.