Man Charged With Felony for Reading Wife’s E-Mails

Posted on December 27, 2010 by Jim Lamm

A December 26, 2010, news story from the Detroit Free Press reports that a Michigan man was charged with a felony for reading his wife’s e–mails from her free Google Gmail account. He was charged under Michigan Compiled Laws § 752.795, which reads:

A person shall not intentionally and without authorization or by exceeding valid authorization do any of the following:

(a) Access or cause access to be made to a computer program, computer, computer system, or computer network to acquire, alter, damage, delete, or destroy property or otherwise use the service of a computer program, computer, computer system, or computer network.

(b) Insert or attach or knowingly create the opportunity for an unknowing and unwanted insertion or attachment of a set of instructions or a computer program into a computer program, computer, computer system, or computer network, that is intended to acquire, alter, damage, delete, disrupt, or destroy property or otherwise use the services of a computer program, computer, computer system, or computer network. This subdivision does not prohibit conduct protected under section 5 of article I of the state constitution of 1963 or under the first amendment of the constitution of the United States.

The article points out that this criminal statute is aimed at identity theft or stealing a company’s trade secrets. But in this case, the man is charged with violating this criminal law by using his wife’s laptop computer and his wife’s password to read her e–mails, which revealed she was having an affair. The couple has since divorced. The man claimed that the computer was a family computer that he used regularly. Also, the person she was having an affair with had a history of domestic violence, and the man was concerned about the safety of his wife’s child from her first marriage. Under Michigan Compiled Laws § 752.797(2), a person found guilty of these charges could be punished by up to five years imprisonment, a fine of up to $10,000, or both. The man’s trial is scheduled for February 7, 2011.

This case should be an eye–opener for guardians, conservators, personal representatives, trustees, and family members of a person who is incapacitated or deceased. As I have mentioned before in this blog, it is important for the fiduciary or family member to have the necessary authority under state or federal law before accessing an incapacitated or deceased person’s e–mail accounts, other Internet accounts, or even their computer or smartphone. Fear of criminal prosecution could put fiduciaries and family members in a difficult position when trying to gather the person’s financial information and valuable digital property for an inventory or estate tax return. Some of these data privacy laws (for example, HIPAA), clearly authorize the personal representative to access a deceased person’s protected information. But state and federal governments should consider revising data privacy laws to clearly authorize guardians, conservators, personal representatives, and trustees of a person’s revocable trust to access an incapacitated or deceased person’s protected information so that the fiduciary can effectively access the information needed to administer the estate or trust without fear of prosecution.

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Financial Value in Trademarks and Domain Names

Posted on December 9, 2010 by Jim Lamm

A December 8, 2010, auction in New York offered 170 business names, product names, and Internet domain names that aren’t being used anymore. Some of these names were recent products and companies, like Infoseek, an Internet search engine company that was popular from 1994 to about 1998 (link). Other names offered for sale haven’t been used for decades (link).

Even though these names have not been used in many years, some still have valuable name recognition for consumers, which translates into real financial value today. According to an interview with branding consultant Rob Frankel on a December 8, 2010, broadcast of American Public Media’s Marketplace radio program, “It’s much, much easier to attach your product to an established proven brand with a track record and it’s way less expensive than to try to go out and build one like that. Way less expensive.”

At the auction, only about two dozen of the 170 names were sold (link). The highest bid of the day was $45,000 for Shearson, a name associated with brokerage companies Shearson Lehman Brothers and Smith Barney Shearson, but the Shearson name was discontinued in 1994 (link; link). Other notable name sales were Handi-Wrap for $30,000 and Computer City for $1,000.

From a technology perspective, having the rights to a trademark may give you an advantage in obtaining the identical or similar Internet domain name. First, the Anticybersquatting Consumer Protection Act protects trademark owners from others trying to register or use a domain name that is “identical or confusingly similar to that mark” with a bad faith intent to profit from it. 15 U.S.C. § 1125(d)(1)(A). Among other remedies, if the trademark owner prevails, the court may order the domain name to be transferred to the trademark owner. 15 U.S.C. § 1125(d)(1)(C). Second, the Internet Corporation for Assigned Names and Numbers (ICANN) coordinates Internet domain names, and all domain registrars must follow a Uniform Domain Name Dispute Resolution Policy if the ownership of a domain name is in dispute. Like the Anticybersquatting Consumer Protection Act, the Uniform Domain Name Dispute Resolution Policy is focused on a domain name that is “identical or confusingly similar to a trademark” and that is registered and used in bad faith. See Paragraph 4.a of the UDRP. A trademark owner can file a complaint with a domain dispute resolution service provider and start an arbitration process to determine who should own the domain, which can result in the transfer of the domain name but no money damages (link).

As I’ve mentioned before, when a person becomes incapacitated or dies, it is important for family members, fiduciaries, and their advisors to look for financial value in the person’s intellectual property rights, including trademarks and domain names. This recent sale of trademarks in New York reminds us that even decades-old company names and product names can have financial value today.

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Oklahoma Statute Gives Executor Power Over Decedent’s Online Accounts

Posted on December 1, 2010 by Jim Lamm

Oklahoma Statutes § 58–269, which took effect November 1, 2010, gives the executor of an estate power over a decedent’s online accounts and purports to give new rights to continue a decedent’s online accounts:

§ 58–269. Executor or administrator—Powers.

The executor or administrator of an estate shall have the power, where otherwise authorized, to take control of, conduct, continue, or terminate any accounts of a deceased person on any social networking website, any microblogging or short message service website or any e-mail service websites.

This new law may be useful for executors (personal representatives) of estates to use in gaining access to the contents of a decedent’s online accounts, because it shows the company holding the online account that the executor has authority to act on behalf of the decedent. This could be very helpful for online e–mail accounts, personal Web pages, blogs, Twitter, and social networking accounts like Facebook and MySpace.

However, as pointed out by Mark R. Gillett of the University of Oklahoma Law School in a December 1, 2010, article from NewsOK, this Oklahoma Statute does not change the Terms of Service for online accounts and the Oklahoma law does not create any new rights of property for the decedent or new rights under the contract with the company providing the online account that do not already exist. As mentioned on other postings at this blog, many online accounts provide in their Terms of Service that the online account terminates when a person dies, and this Oklahoma Statute purports to allow an executor to take control of and continue the decedent’s account after death.

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Cyberstalking, Cyberbullying, and Cyberharassment Resources

Posted on November 30, 2010 by Jim Lamm

A November 29, 2010, article by Ms. Smith in Network World titled Free Speech, Privacy & Cyberstalkers—Help For Those With Personal Cyberstalking Terrorists, describes three types of Internet harassment: cyberstalking, cyberbullying, and cyberharassment. This article provides helpful tips and resources for individuals, family members, fiduciaries, and their advisors who are dealing with online harassment.

As the article points out, it can be difficult to track down the sources of these bullying, stalking, and harassing activities in the digital world, and local law enforcement may not have the training or resources to help. The article suggests contacting Working to Halt Online Abuse or the National Center for Victims of Crime for assistance.

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92% of Children Under Age Two Have a Digital Presence on the Internet

Posted on October 15, 2010 by Jim Lamm

In a September 2010 study by AVG Technologies and Research Now, they found that, in the United States, 92% of children under age two have a digital presence on the Internet, including digital photos posted online. According to AVG Technologies, they polled mothers who have Internet access in the United States as well as nine other countries (link). Among these ten countries, a child has a digital presence on the Internet at the age of six months on average!

Other interesting conclusions from the September 2010 study are that:

  • 34% of U.S. mothers upload images of their prenatal ultrasound scans;

  • 33% of U.S. mothers upload images of their newborn within weeks of being born;

  • 6% of U.S. mothers give their baby an e–mail address; and

  • 6% of U.S. mothers give their baby a social network profile.

It was not part of this study, but I have talked with people who have registered domain names for their children (e.g., jimlamm.com) when they are born. I wouldn’t be surprised if some tech-savvy parents consider the availability of a domain name for their child when choosing the child’s name!

When doing estate planning for passwords, online accounts, and other digital property, it’s important to include the accounts and digital property a person may have for their children, their own parents, and other family members. With this study’s conclusion that a child may have a digital presence on the Internet starting at the age of six months on average (and the child may even have ultrasound images posted before birth), we need to start planning for passwords and digital property early!

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Estate Planning for Web Pages and Blogs

Posted on October 4, 2010 by Jim Lamm

If a person becomes incapacitated or dies, look for any Web pages or blogs that the person operated. As most people know, a blog is a personal or business Web page with posted news items, reviews, or personal comments about a particular topic. For example, Politico is a popular blog with updates about Washington politics.

The content on personal Web pages and blogs may have sentimental value to family members and friends. Most of this content is available to anyone over the Internet, as long as the Web page or blog hosting agreement remains in force and the fees for hosting, if any, are paid. As with other Internet accounts, whether the passwords to update the content of these personal Web pages and blogs can be reset and whether the accounts can be transferred depends on the hosting company’s terms of use agreement.

Personal Web pages and blogs can generate revenue, which can make them valuable assets. These sites may generate revenue by selling advertisements on their pages—this revenue is typically based on the volume of unique visitors and the number of pages that they view. Some advertisers pay only for the actual number of times a visitor clicks on the advertisement link, regardless of how many visitors see the ad. Personal Web pages and blogs probably will not generate significant advertisement revenue.

On the other hand, highly popular Web pages and blogs can be very valuable. Celebrity gossip Perez Hilton runs a blog that generates advertising revenues of $6.2 million per year, and the blog was worth an estimated $44 million in 2009 (link). Yet, without Perez Hilton, the blog may be worthless.

If a person’s Web pages or blogs have financial value, these pages and their contents should be appraised and included on the inventory of assets for the person’s guardianship, conservatorship, probate estate, or revocable trust. There are free services on the Internet to estimate value, and there are commercial appraisal companies that will estimate the value of the Web page or blog. Keep in mind that the domain name (e.g., “cnn.com“) may have a separate value than the content (text, pictures, videos, music, etc.) hosted at that domain name as Web pages or a blog. The person may own the domain name where the Web pages or blog is hosted, or the Web pages or blog may be hosted at a domain name that someone else owns. For example, the domain “WordPress.com” hosts blogs for free on its domain name. So, make sure that any appraisal you obtain values the Web page and blog content separately from the domain name, if applicable.

Also consider that there may be value in the person’s intellectual property rights in the contents of the Web page or blog. For example, on August 25, 2002, Julie Powell started blogging about her year of cooking dishes from a Julia Child cookbook, and she then turned her blog into the book Julie & Julia and eventually a 2009 movie starring Meryl Streep.

Finally, if a person is critically ill or incapacitated, the person’s Web page or blog may be a convenient way to inform family members and friends of the person’s medical status and progress. If the person does not already have a Web page or blog that would be suitable for this purpose, CaringBridge is a non–profit Web service that allows family members to post updates about a person’s critical illness and allows friends and family members to reply with messages of care and support. According to their Web site, 500,000 people per day use CaringBridge.

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Estate Planning for Online and Electronic Financial Accounts

Posted on September 9, 2010 by Jim Lamm

After obtaining access to a person’s e–mail accounts and U.S Mail deliveries, another important step in dealing with the person’s incapacity or death is to locate information about the person’s financial world. In the digital world, Intuit’s Quicken and Microsoft’s Money are the two leading personal financial software programs, and they are a good place to start looking for information about a person’s assets and liabilities. However, that Microsoft Money is no longer offered for sale. In addition to software programs on a persons computer, online personal finance Web sites are also available to track personal finances, such as Mint.com. Tax return software, such as TurboTax, TaxCut (also called H&R Block at Home), and Tax Act, as well as electronic copies of tax returns, are also excellent sources of a person’s financial information.

Not only banks, but also brokerage firms, credit cards, lenders, and other billers increasingly are offering Internet accounts that can be used to check balances, pay bills, and review statements. After these financial accounts are identified, Internet access to the accounts may be convenient for family members and fiduciaries, but Internet access is not necessary. Instead of obtaining Internet access to financial accounts when a person becomes incapacitated or dies, the appropriate fiduciary instead can contact the financial companies in person or by mail to arrange for convenient access to statements, to authorize control or transfer of assets, and to pay for liabilities. It is also important to check on automatic deposits and bill payments as soon as possible and stop automatic transactions, if necessary.

To prevent fraud or unauthorized access, it may be prudent to change the person’s passwords to the Internet accounts or shut off Internet access to those accounts entirely.

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Estate Planning for Domain Names

Posted on September 2, 2010 by Jim Lamm

Registered domain names are the words, letters, or numbers that we use to refer to an Internet address, such as Google.com or Yahoo.com. An individual or business can register an available name with a domain name registrar for a fixed period of time, typically one or two years. If the domain name is popular or valuable, it is important to track down the individual’s domain names soon after incapacity or death. In an interview on National Public Radio’s All Things Considered program, broadcast on May 11, 2009, John W. Dozier, Jr., a Virginia attorney, described a case in which hackers stole a decedent’s domain names before the beneficiaries of the estate knew about them. In that case, the law firm was able to help the estate recover all of the domain names.

If the family members or fiduciaries want to retain an individual’s domain names, it’s important to check when the domain names expire using a “whois” service available at almost any domain name registrar’s Web site. If you do not know which domain names an individual owns, some companies, such as DomainTools.com, offer a fee based search of domain names by the registrant’s name, e–mail address, home address, or telephone number. But if an individual registers a domain name privately, these search tools may not find anything connecting the individual to the domain names. Look through credit card statements and checking account statements for annual payments to domain name registrars in order to find the companies that may have privately registered domain names on behalf of the individual.

The vast majority of domain names have little or no value to third parties. But a domain name can have significant value if it is a popular Internet search word or phrase, a word or phrase useful for selling goods and services, or a company brand name. According to midFlux, a company that provides domain name appraisals, some of the most valuable domain names that have been sold are Business.com ($7.5 million in 2005), Diamond.com ($7.5 million in 2006), and Beer.com ($7.0 million in 2004). Some domain names have sold for even larger amounts. A domain name appraisal is not very expensive—usually $30 or less for a typical domain name. Note that a domain name is valued separately from the content of the Web page or other services offered through that domain name. If the family or fiduciary wants to sell the individual’s domain names, they can sell them on Internet sites dedicated to domain name sales, such as Sedo or Afternic, or they can be sold at general Internet marketplaces such as eBay.

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Study Finds Same Passwords Used on Multiple Online Accounts by Most People

Posted on August 18, 2010 by Jim Lamm

While the results aren’t too surprising, BitDefender issued a press release on August 9, 2010, concluding that 75% of users that they studied had the same password for both their e–mail accounts and their social networking accounts (link).

Although this is bad news for the security of online accounts, it may be helpful for family members and fiduciaries who are dealing with a person’s incapacity or death. If the person did not leave behind a list of passwords for their online accounts, recovering one password (such as the e–mail password) may unlock the person’s other online accounts. However, exercise caution because some online accounts may lock out login attempts after a certain number of failed password attempts.

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Estate Planning for Video Games and Virtual Worlds

Posted on August 16, 2010 by Jim Lamm

Family members and fiduciaries may not consider online video game accounts or accounts in virtual worlds to be valuable property, but they can be. With online video games, the time and effort involved in building a powerful character or accumulating virtual currency or items in the game has led to a real world market in the buying and selling of these video game characters as well as their virtual currency and items. Edward Castronova, associate professor of telecommunications at Indiana University, in a May 2009 interview with CNN, estimated that $1 billion per year is converted into virtual currencies, primarily for video games (link).

One of the most popular online games is World of Warcraft. In September 2007, a character in World of Warcraft sold for an estimated 7,000 euros (about $9,500 at that time) (link). If the incapacitated or deceased individual spent a significant amount of time playing any popular online video games, check whether the game character or virtual currency or items are valuable assets that should be inventoried and transferred.

In August 2010, The Nielsen Company released new research that online video games are the second most heavily used activity on the Internet in the U.S., accounting for 10.2% of Internet time (link). That puts online video game time ahead of time spent on e–mail (link). Social networking using Facebook, MySpace, LinkedIn, etc. accounts for 22.7% of U.S. Internet time (link).

The Pew Internet & American Life Project’s recent survey found 35% of adults who use the Internet play online video games, but only 2% visit a virtual world, such as Second Life (link). But individuals who are active in Second Life average about 40 hours a month in this virtual world (link). As with online video games, there is a real world market to buy and sell virtual world items among users. Second Life sells virtual real estate directly to users. Owning a small parcel of land in the virtual world is free, but an upwardly mobile virtual citizen can spend real dollars to live the virtual life of luxury. For $1,000 plus a $295 monthly maintenance fee, a user can buy his own private island from Second Life to own, control, and rent to other users (link). Top users transact business in the virtual world, such as selling virtual real estate, fashion items, and home furnishings. A handful of the most successful virtual entrepreneurs exchange their virtual currency for more than $1 million per year in the real world (link).

In December 2009, a person known as “Buss Erik Lightyear” paid $330,000 to own a virtual space station in Planet Calypso, which is a massively mutiplayer online role–playing game or MMORPG (link). The sale happened in an auction, with three people bidding over $300,000 for the virtual space station (link). The game allows exchanges between virtual currency and real dollars at a fixed exchange rate of 10 PED (virtual currency) to $1 U.S. dollar (link). Because this virtual space station is a popular in-game destination for other players (who pay virtual currency and virtual taxes), the buyer of the space station could get a real return on this purchase (link). In August 2006, another Planet Calypso (then called Entropia Universe) player who purchased a virtual asteroid in the game grossed $100,000 in revenue in the first eight months (link). More recent statistics show that the same virtual asteroid produced approximately $64,000 in gross revenue in just the first four months of 2010 (640,000 PED = $64,000) (link).

So, estate planning for online video game accounts and accounts in virtual worlds is important, and family members and fiduciaries should carefully consider the value of these accounts when dealing with a person’s incapacity or death. Valuable online video game accounts and accounts in virtual worlds should be included in guardianship, conservatorship, estate, and trust inventories; income from these accounts should be included in individual, estate, and trust income tax returns; and the date of death value of these accounts should be included in federal and state estate tax returns.

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