Estate of Murray, NYLJ October 21, 2019, Date filed: 2019-09-30. Court: Surrogate's Court, Suffolk, Judge: Surrogate Theresa Whelan, Case Number: 2018-1561/A:
"By this proceeding, petitioner, one of the duly appointed fiduciaries of the estate of this decedent, seeks an order granting her access to the account decedent maintained with Apple, Inc. so she can recover the personal data from the account. Jurisdiction has been obtained over those shown as necessary parties to this proceeding and no one has appeared in opposition to the relief requested by petitioner.
Decedent died on March 25, 2017 survived by his parents, Beatrice Murray and Michael Murray. Pursuant to decree dated May 7, 2018, decedent’s parents were appointed co-administrators of his estate and letters of administration issued accordingly.
Although both of decedent’s parents were issued letters of administration, the instant proceeding was commenced solely by Beatrice Murray. Petitioner asserts that when the decedent died, he was the user of an Apple iPhone 7 cell phone. The phone carrier assigned telephone number 631-6**-8*** to the device and an Apple ID was created using the email address P******12@gmail.com. The cell phone and presumably the account contains data associated with this Apple ID. Petitioner indicates that she was, and is, the owner of this cell phone, that decedent merely had permission to use the phone and that he was the only user of the Apple account associated with the aforementioned cell phone number and email address at the time of his death.
Petitioner is of the good faith belief that the data within the phone contains information in the form of telephone records, voice messages and text messages received and sent by the decedent which would assist in determining the source of drugs obtained by him. She indicates that information contained “in the data within the phone” as well as the contents of these electronic communications of the user is reasonably necessary for the administration of decedent’s estate. Thus, petitioner requests the disclosure of this data and electronic communications via access to the decedent’s Apple ID.
Upon information and belief, petitioner asserts that there are no other authorized users of this Apple iPhone 7 cell phone, using the telephone number 631-6**-8***. Further, petitioner asserts that under the facts of this case, no law, legal duty, or obligation, including, but not limited to any provision of state or federal law prohibits Apple from disclosing to petitioner the contents stored in decedent’s account.
Further, petitioner indicates that she submitted a written request to Apple, the custodian, to transfer ownership of the Apple ID and provide access to the data. Such request included a copy of the death certificate of her son, the user, and a copy of the letters of administration issued to petitioner. The custodian contacted petitioner and explained the procedure for transferring the Apple ID. A copy of the emails and text messages have been submitted in connection with this proceeding.
According to petitioner, a representative of Apple has indicated that Apple will continue with petitioner’s request to transfer ownership of the Apple ID to petitioner, which will allow access to the data from decedent’s cell phone, if a court order specifies that the decedent was the user of all accounts associated with the Apple ID, that the “requestor” (petitioner) is the legal representative of the decedent, that the requestor is the “agent” of the decedent and her authorization constitutes “lawful consent”, and that Apple is ordered by the court to assist in the recovery of decedent’s personal data from the Apple account (s).
Petitioner asserts that, as the duly appointed fiduciary, she is the legal personal representative of the decedent and that a court order would constitute “lawful consent” as those terms are set forth in the Electronic Communication Privacy Act (18 USC §§2510, et seq.) and the Stored Communications Act (18 USC §§2701, et seq.). Petitioner avers that under the circumstances presented, there is no state or federal law that prohibits disclosure of the contents stored in decedent’s account.
EPTL Article 13-A, which addresses access to digital assets, became effective in September of 2016. This article, as it relates to this proceeding, is applicable to an administrator acting for a decedent who died before, on or after its effective date (EPTL 13-A-2.1(a)(2)) and a custodian if the user resided in this state at the time of his death (EPTL 13-A-2.1(b)).
Pursuant to the relevant provisions of Article 13-A, where a user utilizes an “online tool”, which is a service provided by a custodian that permits a user to give directions for disclosure or nondisclosure of digital assets to a third party, such directive overrides a contrary directive contained in a will, trust, power of attorney or other record. Here, it is unclear whether Apple provides such tool or, if it is provided, whether decedent utilized it. It does not appear that decedent addressed disclosure of his digital assets via a will, trust or other record (EPTL 13-A-2.2 (b)).
Although no one has appeared in opposition to the requested relief, in this evolving area, the former surrogate of this county, John M. Czygier, Jr., expressed his concern regarding unintended consequences of permitting unfettered access to a deceased user’s digital assets (see Matter of White, NYLJ Oct. 3, 2017, at 25, col. 1). The undersigned acknowledges this concern and appreciates the delicate balance between a decedent’s right to privacy and a fiduciary’s duty to marshal estate assets.
Here, petitioner’s vague assertion that access to the content of the electronic communications held by Apple, Inc. as custodian is reasonably necessary to the administration of the estate is not supported by the record. Further, the Apple iPhone 7 that she claims ownership of is merely a portal for accessing the content and digital assets associated with a specific Apple ID. Absent from the record is an allegation supported by proof of a connection between the information petitioner seeks and the administration of this decedent’s estate. Rather, it appears that petitioner seeks the content of decedent’s electronic communications so she can conduct an investigation into facts and circumstances leading up to tragic loss of her son.
While the court is not unsympathetic to the concerns of petitioner and her desire to uncover the identities of those individuals she believes were, in part, responsible for the death of her son, she has not established a sufficient nexus to warrant granting the requested relief.
Further, the court notes that a distinction must be made between content based disclosure and non-content based disclosure with respect to a deceased user. Subject to other requirements, disclosure of content of electronic communications involves an affirmative act by the decedent whether online or via an instrument or document (EPTL 13-A-3.1), while disclosure of non-content based digital assets merely requires that the decedent did not prohibit the disclosure (EPTL 13-A-3.2).
Here, as it does not appear from the record that decedent prohibited disclosure of his digital assets, pursuant to EPTL 13-A-3.2, the court shall direct Apple, Inc. to disclose to petitioner solely the non-content information to wit: a catalogue of electronic communications sent or received by decedent and digital assets associated with decedent’s Apple ID, other than the content of electronic communications. In the event that greater access to this account appears warranted, the fiduciary may commence a new proceeding seeking same.
Based upon the foregoing the court finds that decedent was the user of the specific account associated with the subject Apple ID, that the petitioner is a duly appointed legal representative of this decedent, that disclosure of a catalogue of electronic communications sent or received by decedent and digital assets associated with subject Apple ID, other than the content of electronic communications, was not prohibited by decedent and does not require lawful consent under the EPTL Article 13 or the Stored Communications Act (18 USC §§2701, et seq.)"
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