Digital estate planning is focused on safeguarding digital assets and securely hand over to your dependents. Comprising digital assets in digital estate plans is a comparatively new phenomenon, and several barriers make it complicated to plan. To assist regarding complete information about the barriers to handle the digital asset planning, here are the aspects that are not to be missed.
Terms of Service Agreements
Whenever we attempt to sign up for a new online account or service, usually, the process necessitates the user to agree to the service provider’s terms of service agreement. Often, we don’t pay attention to it, and instinctively, we agree to them without reading thoroughly. But it is essential to read, as the service providers may have mentioned procedures on “what is going to happen to the account on the demise of an account holder.”
Some service providers permit authorized dependents to continue user accounts on the dead person’s behalf. In contrast, some automatically delete the account by handing over the data (if available) in the account as directed by the attorney and legally approved last will or digital estate plan. So, make sure you refer thoroughly and accordingly channelize your last will draft.
In some cases, it may be the situation where the user does not necessarily hold the ownership of the digital assets but has a consent to utilize the asset when alive. It is not probable that an individual can handover the digital content like music, movies, and books that they have purchased in electronic form, even though they may transfer physical records (vinyl), CDs, DVDs, and books without complication.
Constantly Changing Digital Asset Information
A user may open new accounts regularly, change passwords, and acquire new devices. Digital asset information is subjected to changes constantly. So accordingly, the digital asset management document and digital estate plan need to be updated with this information regularly, which is challenging.
Understanding Federal Law
It is important to understand the legal framework support while drafting the digital estate plan. User needs to understand the provisions federal law framework makes for providing fiduciary the digital access to your assets. In regard to this, the United States of America federal law framework provides two acts:
(1) The Stored Communications Act (“SCA”), a federal privacy law,
(2) The Computer Fraud and Abuse Act (“CFAA”), a federal criminal law.
1. Stored Communications Act (SCA)
The Stored Communications Act was enacted in 1986 as part of the Electronic Communications Privacy Act. The SCA provides criminal penalties to be executed to the persons who “intentionally accesses without authorization a facility through which an electronic communication service is provided” or “intentionally exceeds an authorization to access that facility” and “thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system.” The SCA forbids revealing data, unless it is made “with the lawful approval of the creator or a beneficiary or intended recipient of such communication, or the subscriber in the case of remote computing service.”
2. Computer Fraud and Abuse Act (CFAA)
The Computer Fraud and Abuse Act was introduced by The United States of America cybersecurity department in 1986, as an amendment to the existing computer fraud law. Before this, in 1984, the computer fraud law was introduced to combat computer-related crimes. To combat growing cybercrimes and as a part of modernizing Law Enforcement authorities, in 2015, Barack Obama proposed to revise the CFAA along with RICO Act.
The CFAA states that anyone who “intentionally accesses a computer without authorization or exceeds authorized access” is considered a crime. The United States Department of Justice contends that the CFAA permits the government to prosecute any person with a crime for infringing the CFAA. If any person contravenes the access rules of a service provider’s terms of service agreement, then that person will be not be permitted or granted permission to access the user account. As a part of this act, the users are given directions in password management and other data assets securing methods. So, the user needs to study this act thoroughly and, as per the guidelines, secure his data assets.
If you are still having doubts or requiring more clarification, feel free to get in touch with our experts for any assistance.