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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. 35