On Thursday, January 17, 2013, I presented a ninety–minute seminar titled “Digital Death: What to Do When Your Client Is Six Feet Under But His Data Is in the Cloud” with Professor Christina L. Kunz and Damien A. Riehl at the 47th Annual Heckerling Institute on Estate Planning in Orlando, Florida. Our panel discussed how fiduciaries and family members need to inventory, value, and administer smartphones, computers, electronically stored information, online accounts, domain names, and other digital property as part of their duties for estate and trust administrations, guardianships, and conservatorships. We also talked about estate planning tips to plan ahead for digital property during incapacity and after death.
Specifically, we talked about the four main obstacles for fiduciaries and family members trying to access electronically stored information, online accounts (e–mail, social networking accounts like Facebook and Google+, etc.), and other digital property. These four main obstacles are: (1) passwords; (2) encryption; (3) federal and state criminal laws that penalize “unauthorized access” to computers and data (including the Computer Fraud and Abuse Act); and (4) federal and state data privacy laws (including the Stored Communications Act).
Our panel also discussed intellectual property law issues, including a current case addressing the issue of whether a person can sell a “used” digital music file, book, or movie purchased from Apple’s iTunes store without violating copyright law. Finally our panel reported on state legislative efforts regarding fiduciary access to digital property and the Uniform Law Commission’s Drafting Committee that is working on this topic.