Vermont Bar Journal, Vol. 40, No. 2 Fall 2014, Vol. 40, No. 3 | Page 35
Conclusion
The nature of technology, the laws gov-
www.vtbar.org
erning it, and the sheer quantity of data
we manage every day can make the idea
of digital-estate planning daunting. It need
not be. More importantly, like it or not, our
duty as counselors is to make do and muddle through.
____________________
Jeffrey P. Guevin, Esq., is an associate focusing on elder law and property at Pratt
Vreeland Kennelly Martin & White, Ltd., in
Rutland.
____________________
Ray Kurzweil, The Age of Spiritual Machines:
When Computers Exceed Human Intelligence (2000).
2
James D. Lamm, Digital Death: What to Do
When Your Client Is Six Feet Under but His Data
Is in the Cloud, presented at the 47th Annual
Heckerling Institute on Estate Planning, Orlando,
Florida, Jan. 17, 2013. Mr. Lamm kindly shared
his latest presentation, Digital Passing: Oh, What
a Tangled Web We Weave, presented at Minnesota Continuing Legal Education, Minneapolis,
Minnesota, May 15, 2014, for which I am deeply
indebted in the writing of this article.
3
Black’s Law Dictionary, 9th Ed., 628.
4
PewResearch Internet Project, Internet User
Demographics, available at http://www.pewinternet.org/data-trend/internet-use/latest-stats/
(“As of January 2014, 87% of American adults
use the internet.”). Of households having an annual income of $75,000 or more, 99% use the
Internet. Id. Over 84% of Vermonters live in a
household with at least one computer. US Census Bureau, Current Pop. Survey, Oct. 2010.
5
18 U.S. Code § 1030; United States v. Nosal,
676 F.3d 854, 863-864 (9th Cir. 2012).
6
18 U.S.C. §§ 2701-2702.
7
13 V.S.A. § 4102.
8
13 V.S.A. § 4106.
9
Vt. Rule of Prof. Conduct 1.3 (Comment) (“To
prevent neglect of client matters in the event of a
sole practitioner’s death or disability, the duty of
1
THE VERMONT BAR JOURNAL • FALL 2014
diligence may require that each sole practitioner
prepare a plan, in
conformity with applicable rules, that designates another competent lawyer to review client
files, notify each client of the lawyer’s death or
disability, and determine whether there is a need
for immediate protective action. See Rule 24,
Rules Governing Professional Responsibility Program (A.O. 9) (providing for court appointment
of a lawyer to inventory files and take other protective action in absence of a plan providing for
another lawyer to protect the
interests of the clients of a deceased or disabled lawyer).”).
10
iCloud Terms and Conditions, https://www.
apple.com/legal/internet-services/icloud/en/
terms.html.
11
https://info.yahoo.com/legal/us/yahoo/utos/
utos-173.html. Yahoo! owns Flickr, the TOS for
which refer to Yahoo!’s own TOS; so, it is an assumption here that Yahoo!’s TOS apply to Flickr.
12
See, e.g., Backupify, What Happens to My
Gmail Account When I Die?, LifeHacker, http://
lifehacker.com/5890672/what-happens-to-mygmail-account-when-i-die.
13
Jim Lamm has suggested the SCA and CFAA
might not apply in states that have adopted fiduciary digital access laws; however, that conclusion
remains untested, and even he does not seem
so sure. James Lamm, Thoughts on the Stored
Communications Act, Federal Preemption and
Supremacy, and State Laws on Fiduciary Access
to Digital Property, at http://www.digitalpassing.
com/2013/11/04/thoughts-stored-communications-act-federal-preemption-supremacy-statelaws-fiduciary-access-digital-property.
14
United States v. Nosal, 676 F.3d at 862.
15
Vt. Rule of Prof. Conduct 8.4.
16
This is also true if there are no terms of service
available on the provider’s website.
17
About
Inactive
Account
Manager,
https://support.google.com/accounts/
answer/3036546?hl=en.
Dealing with Data
if your cloud-based password service goes
out of business?). Even if you use a cloud
service to manage your passwords, the paper list at least will help your agent identify critical data and accounts. Finally, fiduciaries can be given power to the full extent
the law and terms of service allow to access
and deal with digital assets.
There is no true workaround for the liability problem arising under the SCA and
CFAA and state counterparts, but there is
a solution, albeit more invasive. First, we
need to determine what accounts are critical. Once these are identified, their terms
of service need to be examined. (I usually
Google “[provider name] terms of service”
to find out). Where terms are present that
implicate the SCA, CFAA, and state counterparts or are otherwise offensive to the
estate plan,16 two options lie:
1. Contact the provider and see if they
will change the term or offer an exception (doubtful); or,
2. Change providers.
Some providers have begun to recognize
the need for fiduciary access on death or
disability. Google, for instance, allows users
to name a “trusted contact,” who may be
notified or allowed “to share parts of their
account data … if they’ve been inactive for
a certain period of time.”17 Others may follow suit.
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