Vermont Bar Journal, Vol. 40, No. 2 Fall 2014, Vol. 40, No. 3 | Page 34

Yahoo’s Terms of Service11
No Right of Survivorship and NonTransferability. You agree that your Yahoo account is non-transferable and
any rights to your Yahoo ID or contents
within your account terminate upon
your death. Upon receipt of a copy of
a death certificate, your account may
be terminated and all contents therein
permanently deleted.

Access / Preservation
Of course, a list of accounts is no use
without the username and password. We
have all been warned off of keeping paper lists of passwords (more on why I think
that is bad advice in a minute.) We are constantly reminded: “Do not share your username or password with anyone.” Even if we
eschew such warnings as hyperbolic fearmongering and create such a list, many sites
require a password change every year, six
months, or even more often (ALPS). Others
may rely on Apple’s Keychain or a computer program like LastPass. Perhaps, then the
problem of access to accounts, and thereby
preservation of assets (for instance, stopping automatic payments), is solved?

“All I wanted to do was download a couple pictures and some songs. It’s not like
I’m stealing,” says your agent.
“So what,” says your lawyer, who is now
advising your agent. “Who’s gonna know?
What’s the worst that could happen?”
As others have noted,12 probably noone and nothing. Yet, to access either account in this instance is arguably a violation
of federal and state law.13 As the Ninth Circuit has noted, “The government assures
us that, whatever the scope of the CFAA
it won’t prosecute minor violations. But we
shouldn’t have to live at the mercy of our local prosecutor.”14
Moreover, the attorney cannot in good
faith advise his client to take that risk:

Do You Want Your Fiduciary
to Become a Felon?
We choose fiduciaries because we think
they deserve our trust. Many people, when
planning their estates, name multiple fiduciaries as a way of showing their trust for
children, relatives, or friends, and of honoring those people and relationships. Yet,
a number of pundits have raised the specter of federal prosecution for exercising the
powers with which we have entrusted such
trusties.
Assume you are an early adopter of technology. You keep all of your photos and
music online—viz., in the cloud. You wreck
your motorcycle one sunny summer’s day,
and now your agent under your advance
directive needs a photo and music to play
at your funeral. Luckily, you left a list of account names and passwords that you fastidiously kept up-to-date, and your agent
knows where to find it. Unluckily, when you
signed up for these services, you didn’t
read the TOS:

Dealing with Data

line service providers. It is difficult keep
the list up-to-date. So, the first issue with
any digital estate—just like any other estate—is knowing what you have and what
is important, and making that information
available to your fiduciaries. What is important will obviously vary, but at a minimum,
what makes the list of digital assets should
include any asset that would make the list
were it memorialized in paper rather than
electrons.

It is professional misconduct for a lawyer to: (b) engage in a “serious crime,”
defined as illegal conduct involving any
felony or involving any lesser crime a
necessary element of which involves …
intentional misrepresentation, fraud,
deceit, … misappropriation, theft, or
an attempt or a conspiracy or solicitation of another to commit a ‘serious
crime.’15

Apple’s iCloud Terms and Conditions:10
No Right of Survivorship
You agree that your Account is nontransferable and that any rights to
your Apple ID or Content within your
Account terminate upon your death.
Upon receipt of a copy of a death certificate your Account may be terminated and all Content within your Account
deleted. Contact iCloud Support at
www.apple.com/support/icloud for further assistance.
34

In short, the terms of service govern access, and when access is unauthorized,
states and the federal government may
criminally prosecute the one accessing the
information.
Workarounds
In technology, when a bug is encountered that for whatever reason cannot be
immediately repaired, savvy technicians
will devise a workaround. A paper list of
accounts, logins, and passwords provides
agents with the ability to access our accounts when needed. A workaround to the
problem of out-of-date passwords, at least
for many sites, is to have challenge questions that your fiduciary or fiduciaries (perhaps only acting together) can answer, so as
to be able to create a new password. And,
the list should be paper. While it can be lost
or destroyed, paper cannot be hacked, and
the likelihood of theft is no greater (and
probably less) than the likelihood of having
one’s TV stolen. Plus, a paper list is not held
hostage to the whims of the market (what
THE VERMONT BAR JOURNAL • FALL 2014

CLEs Just Around
the Corner
Real Estate Law Day
Real Estate Law Day returns! Sponsored
by the Vermont Bar Association & the
Vermont Association of Realtors, this
very popular program provides a day
of education and camaraderie designed
specifically with the needs of the
practicing real property professional in
mind.
Where: Capitol Plaza
When: November 14, 2104
Credits: 6.0 MCLE - Attorneys

6.0 CE - Realtors
Register: https://www.vtbar.org/Calendar/
Signup.aspx?EventNo=2686
_______________________________
Municipal Law Day
We’re working with the Vermont League
of Cities and Towns on what will be an
amazing annual event.
SAVE THE DATE! December 3, 2014 at
the Capitol Plaza in Montpelier.
_______________________________
YLD Mid-Winter Thaw
SAVE THE DATE for the Annual VBA
Young Lawyers Division Mid-Winter
Thaw in Montreal - MLK weekend January 16th & 17th, 2015! More details
coming soon.
_______________________________
Basic Skills in Vermont
Practice & Procedure
will be held on March 19, 2015 at the
Hilton Burlington! Whether you’re
applying for Admission with