Protecting Digital Assets with Jessica Gordon

Jessica Gordon is an attorney in the Los Angeles office of Thompson Coburn LLP; she represents clients in estate planning, trust administration, and probate matters. We met years ago at a meeting for the young lawyers executive committee of the LA County Bar, where she is the current President-Elect (and I the VP).

After reading an article Jessica authored in LA Lawyer magazine about protecting one’s digital assets after death, I asked that she answer a few questions for purposes of this blog. This issue affects everyone, yet I haven’t heard it discussed much, if at all.

I recently read an article you wrote re digital assets. What are digital assets? 

The term “digital assets” encompasses a wide variety of electronic records, from your e-mail and Facebook accounts to your iTunes music, domain name, and Paypal account.  Some of them may have monetary value while others only may have sentimental value, but they all represent challenges to survivors after the death of the owner.

As the law currently stands in California, what happens to one’s digital assets upon death?

Without an estate plan or utilization of an “online tool” associated with the particular account (almost no one uses the online tool), then your heirs and loved ones will need a court order to access each of your digital assets after your death.  What often happens is they do not bother to do this and the digital assets are essentially lost.

If you actually had the forethought to leave your updated passwords behind for loved ones, there are currently federal and state laws that make it a criminal offense for anyone other than you, as the account owner, to access the accounts (this is not the case for every type of account).  For example, the federal Computer Fraud and Abuse Act prohibits accessing certain computers without express authorization, while at the same time, many Terms of Service forbid users from giving their passwords to anyone else.  So, if  anyone other than the account owner accesses an account by entering the password, that is arguably a criminal act. 

Additionally, online service providers are prevented under the federal Stored Communications Act from disclosing the contents of certain communications to anyone not given “lawful consent” by the originator or recipient.  The statute is not clear if a fiduciary named by a user is given lawful consent for these purposes.  These laws were intended to penalize hackers and identity thieves, but they catch many others lacking such criminal intent.  By the same token, the laws in general give service providers the right to deny information to anyone other than the account owner.  Though well-intended, these laws have made it difficult, and in some cases impossible, for fiduciaries to access digital assets after death.

What basic steps should be taken to ensure loved ones will not be locked out of a decedent’s digital assets? 

A user should seek out an online tool for each account the user owns, and nominate a person to access such account after death (or provide alternate direction).  Absent an online tool, or instead of an online tool, inclusion of appropriate provisions in wills and trusts is now essential in any jurisdiction that has enacted RUFADAA (California has adopted a modified version, but the same instruction applies). 

It is also beneficial to deposit an inventory of digital accounts, along with usernames and passwords (ideally updated and with answers to security questions), with the estate plan in a secure location to ensure quick access.  So long as the estate plan provides the fiduciary the authority to access the accounts, there is no risk of criminality for using the passwords. 

If the user does not have or want an estate plan, there are now several web-based services that claim to store and safeguard account information for digital assets, and will permit access only to the authorized person as selected by the user.  By taking any one of these steps, loved ones are provided the best chance that the decedent’s legacy of digital assets will be honored, and the management and value passed on to them, with minimal stress and heartache during a difficult time.

 

PLEASE NOTE: The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Pinot Epiphanies, Jessica Gordon, or Thompson Coburn LLP, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.