Uniform Fiduciary Access to Digital Assets Act (UFADAA) and Digital Assets 2016 Trust and Estate Planning Series

Transcription

1 ABA BRIEFING PARTICIPANT S GUIDE Uniform Fiduciary Access to Digital Assets Act (UFADAA) and Digital Assets 2016 Trust and Estate Planning Series Thursday, March 3, 2016 Eastern Time 1:00 p.m. 3:00 p.m. Central Time 12:00 p.m. 2:00 p.m. Mountain Time 11:00 a.m. 1:00 p.m. Pacific Time 10:00 a.m. 12:00 p.m.

2 American Bankers Association Trust and Estate Planning Briefing Series Uniform Fiduciary Access to Digital Assets Act (UFADAA) and Digital Assets Thursday, March 3, :00 3:00 p.m. ET DISCLAIMER This Briefing will be recorded with permission and is furnished for informational use only. Neither the speakers, contributors nor ABA is engaged in rendering legal nor other expert professional services, for which outside competent professionals should be sought. All statements and opinions contained herein are the sole opinion of the speakers and subject to change without notice. Receipt of this information constitutes your acceptance of these terms and conditions. COPYRIGHT NOTICE USE OF ACCESS CREDENTIALS 2016 by American Bankers Association. All rights reserved. Each registration entitles one registrant a single connection to the Briefing by Internet and/or telephone from one room where an unlimited number of participants can be present. Providing access credentials to another for their use, using access credentials more than once, or any simultaneous or delayed transmission, broadcast, re-transmission or re-broadcast of this event to additional sites/rooms by any means (including but not limited to the use of telephone conference services or a conference bridge, whether external or owned by the registrant) or recording is a violation of U.S. copyright law and is strictly prohibited. Please call BANKERS if you have any questions about this resource or ABA membership.

3 American Bankers Association Trust and Estate Planning Briefing Series Uniform Fiduciary Access to Digital Assets Act (UFADAA) and Digital Assets Thursday, March 3, :00 3:00 p.m. ET Table of Contents TABLE OF CONTENTS... II SPEAKER & ABA STAFF LISTING... III PROGRAM OUTLINE... IV CONTINUING EDUCATION CREDITS INFORMATION... V CPA SIGN-IN SHEET & CERTIFICATE OF COMPLETION REQUEST... VI CFP SIGN-IN SHEET & CERTIFICATE OF COMPLETION REQUEST... VII INSTRUCTIONS FOR REQUESTING CERTIFICATE OF COMPLETION.. VIII PROGRAM INFORMATION... ENCLOSED PLEASE READ ALL ENCLOSED MATERIAL PRIOR TO BRIEFING. THANK YOU. The Evaluation Survey Questionnaire is available online. Please complete and submit the questionnaire at: Thank you for your feedback. II

4 American Bankers Association Trust and Estate Planning Briefing Series Uniform Fiduciary Access to Digital Assets Act (UFADAA) and Digital Assets Thursday, March 3, :00 3:00 p.m. ET Speaker and ABA Staff Listing Speakers Thomas W. Abendroth Partner Schiff Hardin LLP 233 South Wacker Drive Chicago, IL (312) Charles Skip D. Fox, IV Partner McGuireWoods LLP Court Square Building 310 Fourth Street, NE, Suite 300 Charlottesville, VA (434) ABA Briefing Staff Cari Hearn Senior Manager (202) Linda M. Shepard Senior Manager (202) American Bankers Association 1120 Connecticut Avenue, NW Washington, DC Robert K. Kirkland, Esq. President Kirkland Woods & Martinsen PC 132 Westwoods Drive Liberty, MO (816) III

5 American Bankers Association Trust and Estate Planning Briefing Series Uniform Fiduciary Access to Digital Assets Act (UFADAA) and Digital Assets Thursday, March 3, :00 3:00 p.m. ET TIMES PROGRAM OUTLINE SESSION AND SPEAKERS 12:45 1:00 p.m. ET Pre-Seminar Countdown 1:00 1:05 p.m. Welcome 1Source International 1:05 1:10 p.m. ET Introduction Skip Fox, McGuireWoods LLP 1:10 1:20 p.m. ET Statistics and Facts on Digital Assets Skip Fox, McGuireWoods LLP 1:20 1:40 p.m. ET Current Federal and State Laws on Digital Assets and Approach of Digital Providers to Digital Assets Bob Kirkland, Kirkland Woods & Martinsen PC 1:40 1:50 p.m. ET Problems that Arise for Individuals in Planning Estates Tom Abendroth, Schiff Hardin LLP 1:50 2:00 p.m. ET Questions and Answers 2:00 2:30 p.m. ET The Road to RUFADAA with a look at the discussions between the drafting committee and the digital providers and the basics of the different laws Bob Kirkland, Kirkland Woods & Martinsen PC 2:30 2:50 p.m. ET Drafting for Digital Assets Tom Abendroth, Schiff Hardin LLP 2:50 3:00 p.m. ET Questions and Answers Wrap-up IV

6 American Bankers Association Trust and Estate Planning Briefing Series Uniform Fiduciary Access to Digital Assets Act (UFADAA) and Digital Assets Thursday, March 3, :00 3:00 p.m. ET Continuing Education Credits Information The Institute of Certified Bankers (ICB) is dedicated to promoting the highest standards of performance and ethics within the financial services industry. The ABA Briefing, Uniform Fiduciary Access to Digital Assets Act (UFADAA) and Digital Assets has been reviewed and approved for 2.5 continuing education credits towards the CTFA (FID) designation. To claim these continuing education credits, ICB members should visit the Member Services page of the ICB Website at You will need your member ID and password to access your personal information. If you have difficulty accessing the Website and/or do not recall your member ID and password, please contact ICB at or American Bankers Association is registered with the National Association of State Boards of Accountancy (NASBA) as a sponsor of continuing professional education on the National Registry of CPE Sponsors. State boards of accountancy have final authority on the acceptance of individual courses for CPE credit. Complaints regarding registered sponsors may be submitted to the National Registry of CPE Sponsors through its website: CPE credit hours (Regulatory Ethics) will be awarded for attending this group-live Briefing. Participants eligible to receive CPE credits must sign in and out of the group-live Briefing on the CPA Required Sign-in/Sign-out Sheet included in these handout materials. A CPA/CPE Certificate of Completion Request Form also must be completed online. See enclosed instructions. The Certified Financial Planners Board has granted 2.0 credits for this briefing. See enclosed instructions on how to receive your CFP credits. Continuing Legal Education Credits This ABA Briefing is not pre-approved for continuing legal education (CLE) credits. However, it may be possible to work with your state bar to obtain these credits. Many states will approve telephone/ audio programs for CLE credits; some states require proof of attendance and some require application fees. Please contact your state bar for specific requirements and submission instructions. V

7 American Bankers Association Trust and Estate Planning Briefing Series Uniform Fiduciary Access to Digital Assets Act (UFADAA) and Digital Assets Thursday, March 3, :00 3:00 p.m. ET CPA Required Sign-in/Sign-out Sheet CPAs may receive up to 2.0 hours of Continuing Professional Education (CPE) credit for participating in this group-live Briefing. INSTRUCTIONS: 1. Each participating CPA must sign-in when he/she enters the room and sign-out when he/she leaves the room. 2. Name and signature must be legible for validation of attendance purposes as required by NASBA. 3. Unscheduled breaks must be noted in the space provided. 4. Each participating CPA must complete, online a CPA/CPE Certificate of Completion Request Form (instructions found on the next page.) 5. Individuals who do NOT complete both forms and submit them to ABA will not receive their Certificate of Completion. This CPE Sign In/Out Sheet must be scanned and uploaded with the CPE/CPA Request for Certificate of Completion form (instructions found the next page) and submitted in order for the CPA to receive his/her certificate of completion. FULL NAME (PLEASE PRINT LEGIBLY) SIGNATURE TIME IN TIME OUT UNSCHEDULED BREAKS American Bankers Association is registered with the National Association of State Boards of Accountancy (NASBA) as a sponsor of continuing professional education on the National Registry of CPE Sponsors. State boards of accountancy have final authority on the acceptance of individual courses for CPE credit. Complaints regarding registered sponsors may be submitted to the National Registry of CPE Sponsors through its website: Please note: CPE credits are ONLY awarded to those who have listened to the live broadcast of this Briefing. VI

8 American Bankers Association Trust and Estate Planning Briefing Series Uniform Fiduciary Access to Digital Assets Act (UFADAA) and Digital Assets Thursday, March 3, :00 3:00 p.m. ET Instructions for Receiving Certificates of Completion CPA / CPE Certificate of Completion Submission of a sign-in/sign-out sheet AND electronic request for a Certificate of Completion are required for the validation process to be completed. NASBA requires ABA to validate your attendance BEFORE you will receive your certificate of completion. 1. COMPLETE a CPA / CPE Certificate of Completion Request Form online at: 2. SCAN and UPLOAD the completed CPA / CPE Required Sign-in/Sign-out Sheet (enclosed) and include it with the Request for CPE / CPA Certificate of Compliance form found in Step SUBMIT completed Request form and Sign-in/out Sheet 4. ABA staff will VALIDATE your attendance upon receipt of the Certificate of Completion Request Form and Sign-in/out Sheet. 5. A personalized certificate of completion will be ed to you within 10 business days once your attendance is validated. 6. QUESTIONS about your certificate of completion? Contact us at briefingcertificates@aba.com General / Participant Certificate of Completion 1. REQUEST a General / Participant Certificate of Completion at: 2. A personalized certificate of attendance will be ed to you within 10 days of your request. 3. QUESTIONS about your certificate of completion? Contact us at briefingcertificates@aba.com VII

9 American Bankers Association Trust and Estate Planning Briefing Series Uniform Fiduciary Access to Digital Assets Act (UFADAA) and Digital Assets Thursday, March 3, :00 3:00 p.m. ET Certified Financial Planner Sign-In Sheet Program ID #: The Certified Financial Planners (CFP) Board has granted 2.0 credits for this program. The participant MUST MAIL the sign-in sheet AND a copy of the CFP approved Certificate of Completion (Request for Certificate of Completion instructions found below) in order to receive continuing education credits for attending this live program. Please mail both the sign-in sheet and Certificate of Completion to: Michelle M. Wynter, American Bankers Association, 1120 Connecticut Ave., NW, Ste. 600, Washington, DC Please note: CFP credits are ONLY awarded to those who have listened to the live broadcast of this Briefing. Last Name Please Print LEGIBLY First Name Middle Name SSN Last four digits only xxx-xx- CFP Registrant ID SMITH JOHN WILLIAM XXX-XX CFP Certificate of Completion Instructions 1. REQUEST a CFP Certificate of Completion via the online Certificate Request Form at: 2. A personalized certificate of completion will be ed to you within 10 days of your request. 3. MAIL CFP Sign-in Sheet AND a copy of the Certificate of Completion to the address found above 4. QUESTIONS about your CFP Certificate of Completion? Contact us at briefingcertificates@aba.com ABA offers many opportunities for you to earn CFP credits. Please complete the form found at so we can add you to promotions and keep you informed. VIII

10 2/29/2016 Uniform Fiduciary Access to Digital Access Act (UFADAA) and Digital Assets 2016 Trust and Estate Planning Briefing Series American Bankers Association Briefing/Webinar Thursday, March 3, :00 3:00 p.m. ET aba.com1-800-bankers Disclaimer This briefing is being recorded with permission and is furnished for informational use only. Neither the speakers, contributors nor ABA is engaged in rendering legal nor other expert professional services, for which outside competent professionals should be sought. All statements and opinions contained herein are the sole opinion of the speakers and subject to change without notice. Receipt of this information constitutes your acceptance of these terms and conditions. aba.com1-800-bankers 2 1

11 2/29/2016 Presenters Thomas W. Abendroth, Partner, Schiff Hardin LLP Charles D. Fox IV, Partner, McGuireWoods, LLP Robert K. Kirkland, Esq., President, Kirkland Woods & Martinsen PC aba.com1-800-bankers 3 Agenda Introduction Statistics and Facts on Digital Assets Current Federal and State Law on Digital Assets and Approach of Digital Providers to Digital Assets Problems that Arise for Individuals in Planning Estates The Road to RUFADAA with a look at the discussions between the drafting committee and the digital providers and the basics of the different laws Drafting for Digital Assets aba.com1-800-bankers 4 2

12 2/29/2016 Introduction Page 1 Accessing and managing digital property implicates concerns of privacy and a complex network of state and federal laws 2014 Uniform Fiduciary Access to Digital Assets Act (UFADAA) as followed by Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) attempts to address Need for advisors, planners, attorneys, and fiduciaries to keep up-to-date on laws and issues in this complex and changing area aba.com1-800-bankers 5 Statistics and Facts on Digital Assets Increasing Importance of Digital Assets Several recent cases have highlighted increasing importance of digital assets Motions to Compel Assistance by Apple in Federal Investigation Page 1 7 Data Regarding the Use of Social Media and Electronic Communication aba.com1-800-bankers 6 3

13 2/29/2016 Examples of Digital Assets Airline Rewards Hotel Points Accounts Social Networking Accounts Voic Accounts Online Photographs and Videos Image Sharing Accounts itunes Web pages Online Purchasing Accounts Bitcoins aba.com1-800-bankers 7 Current Federal and State Law on Digital Assets Terms of Service Agreements and Federal and State Laws Regarding Access to Digital Assets Terms of Service Agreements and Applicable Law Terms of Service Agreements Yahoo! Facebook Google Apple itunes Amazon s Kindle Page 7 10 aba.com1-800-bankers 8 4

14 2/29/2016 Current Federal and State Law on Digital Assets Page Federal Law Anti-hacking Laws Stored Communications Act ( SCA ) Computer Fraud Abuse Act ( CFAA ) State Law Connecticut Delaware Idaho Indiana Nevada Oklahoma Rhode Island Virginia aba.com1-800-bankers 9 Problems that Arise for Individuals in Planning Estates Service Agreements Technology Lack of Understanding of Issues aba.com1-800-bankers 10 5

15 2/29/2016 Questions and Answers If you are participating on the Web: Enter your Question in the Box Below and Press ENTER / SUBMIT. If you are participating by Phone: your Question to: aba@1source-intl.net OR Press *1 on your Telephone Keypad aba.com1-800-bankers 11 The Road to RUFADAA UFADAA and RUFADAA Drafting of UFADAA Opposition faced by UFADAA Only Delaware enacted UFADAA Alternative Proposals Provisions of RUFADAA Section 2 includes definitions of terms used Applicability Direction by User for Disclosure Procedures for Access Disclosure Fiduciary Duty and Immunity Key Distinctions Between UFADAA and RUFADAA Page aba.com1-800-bankers 12 6

16 2/29/2016 The Road to RUFADAA Page Governing Law Concerns of Access Potential Liability under the SCA, the CFAA, and Applicable State Law Prosecutions under the SCA and CFAA Court Orders In re Facebook, Inc. Negro v. the Superior Court of Santa Clara County Ajemian v. Yahoo!, Inc. aba.com1-800-bankers 13 Estate Planning and Drafting for Digital Assets Important to address digital assets in the planning process Inventory of digital assets Power of Attorney Will and Trust: Drafting for Control and Disposition of Digital Assets Digital Asset Authorization Conclusion Page aba.com1-800-bankers 14 7

17 2/29/2016 Questions and Answers If you are participating on the Web: Enter your Question in the Box Below and Press ENTER / SUBMIT. If you are participating by Phone: your Question to: aba@1source-intl.net OR Press *1 on your Telephone Keypad aba.com1-800-bankers Trust and Estate Planning Series Briefing Date Apr 7, 2016 May 5, 2016 Jun 2, 2016 Sep 8, 2016 Oct 6, 2016 Nov 3, 2016 Dec 1, 2016 Recordings Now Available Briefing Topic The New Paradigm in Trusts and Estate Valuation Fiduciary Litigation Roundtable Charitable Tales from the Crypt Issues with Art and Other Collectibles in the Administration of Trusts and Estates Are You a Fiduciary? Twenty Steps to Avoid Fiduciary Litigation Recent Developments in Estate and Trust Administration Life Insurance in a 21 st Century Estate Plan Uniform Fiduciary Access to Digital Assets Act (UFADAA) and Digital Assets Register Now at aba.com1-800-bankers 16 8

18 American Bankers Association Briefing / Webinar Uniform Fiduciary Access to Digital Assets Act (UFADAA) and Digital Assets Thursday, March 3, :00 p.m. to 3:00 p.m. E.T. Charles D. Fox IV McGuireWoods LLP Court Square Building 310 Fourth Street, NE, Suite 300 Charlottesville, Virginia (434) cfox@mcguirewoods.com Thomas W. Abendroth Schiff Hardin LLP 233 S. Wacker Drive, Suite 6600 Chicago, Illinois (312) tabendroth@schiffhardin.com Robert K. Kirkland Kirkland Woods & Martinsen PC 132 Westwoods Drive Liberty, Missouri (816) bkirkland@kwm-law.com Copyright 2016 by Schiff Hardin LLP and McGuireWoods LLP

19 CHARLES D. ( SKIP ) FOX IV is a partner in the Charlottesville, Virginia office of the law firm of McGuireWoods LLP and head of its Private Wealth Services Industry Group. Prior to joining McGuireWoods in 2005, Skip practiced for twenty-five years with Schiff Hardin LLP in Chicago. Skip concentrates his practice in estate planning, estate administration, trust law, charitable organizations, and family business succession. He teaches at the American Bankers Association National Trust School and National Graduate Trust School where he has been on the faculty for over twenty-five years. Skip was an Adjunct Professor at Northwestern University School of Law, where he taught from 1983 to 2005, and is currently an Adjunct at the University of Virginia School of Law. He is a frequent lecturer across the country at seminars on trust and estate topics. In addition, he is a co-presenter of the long-running monthly teleconference series on tax and fiduciary law issues sponsored by the American Bankers Association. Skip has contributed articles to numerous publications and is a regular columnist for the ABA Trust Letter on tax matters. He was a member of the editorial board of Trusts & Estates for several years and was Chair of the Editorial Board of Trust & Investments from 2003 until Skip is a member of the CCH Estate Planning Advisory Board. He is the author or co-author of seven books. Skip is a Fellow of the American College of Trust and Estate Counsel (for which he is Treasurer) and is listed in Best Lawyers in America. In 2008, Skip was elected to the NAEPC Estate Planning Hall of Fame. He is also Chair Emeritus of the Duke University Estate Planning Council and a member of the Princeton University Planned Giving Advisory Council. Skip has provided advice and counsel to major charitable organizations and serves or has served on the boards of several charities, including Episcopal High School (from which he received its Distinguished Service Award in 2001) and the University of Virginia Law School Foundation. He received his A.B. from Princeton, his M.A. from Yale, and his J.D. from the University of Virginia. Skip is married to Beth, a retired trust officer, and has two sons, Quent and Elm. - i -

20 THOMAS W. ABENDROTH is a partner in the Chicago law firm of Schiff Hardin LLP and practice group leader of the firm s Private Clients, Trusts and Estates Group. He concentrates his practice in the fields of estate planning, federal taxation, and business succession planning. Tom is a 1984 graduate of Northwestern University School of Law, and received his undergraduate degree from Ripon College, where he currently serves on the Board of Trustees. He has coauthored a two-volume treatise entitled Illinois Estate Planning, Will Drafting and Estate Administration, and a chapter on sophisticated value-shifting techniques in the book, Estate and Personal Financial Planning. He is co-editor of Estate Planning Strategies After Estate Tax Reform: Insights and Analysis (CCH 2001). Tom has contributed numerous articles to industry publications, and served on the Editorial Advisory Board for ABA Trusts & Investments Magazine. He is a member of Duke University Estate Planning Council. Tom is a frequent speaker on tax and estate planning topics at banks and professional organizations. In addition, he is a co-presenter of a monthly teleconference series on estate planning issues presented by the American Bankers Association. Tom has taught at the American Bankers Association National Graduate Trust School since He is a Fellow of the American College of Trust and Estate Counsel. - ii -

21 ROBERT K. KIRKLAND is President of the law firm of Kirkland Woods & Martinsen PC, which has offices in Liberty, Missouri and Overland Park, Kansas. He is licensed to practice law in Missouri and Kansas. He works with a variety of individual clients, handling the preparation of Wills, Living Trusts, Durable Powers of Attorney, Irrevocable Trusts, Charitable Trusts and Minor s Trusts, and counseling clients in the areas of gifting techniques, asset protection, charitable planning and business succession planning. He also advises fiduciaries in estate, conservatorship and trust administration matters. Bob is a Fellow of the American College of Trust and Estate Counsel ( ACTEC ), is the immediate past Missouri State Chair of ACTEC, and is a member of the ACTEC Board of Regents and the ACTEC Executive Committee. He is also a member of the Employee Benefits Committee (Chair), Sponsorship Advisory Committee, Digital Property Task Force, Charitable Planning Committee, Long Range Planning Committee, Communications Committee and Bylaws and Manuals Committee (Chair) of ACTEC. He is listed in the most recent editions of The Best Lawyers in America and Super Lawyers. Bob has successfully completed the Effective Probate Mediation Training course sponsored by ACTEC, and frequently serves as a mediator of trust and estate disputes. Bob also served as the ACTEC Observer to the Uniform Law Commission Drafting Committee on Fiduciary Access to Digital Assets, and is the Chair of the Missouri Bar Subcommittee of the Probate and Trust Committee on digital assets. Among several professional and civic activities, Bob is a member of the Board of Directors of the Liberty Women s Clinic, the Board of Directors of Autism Works, and the Board of Directors of the Midwest Chapter of the Leukemia and Lymphoma Society. Bob also serves as Planning Chair of the annual Missouri Bar Estate & Trust Institute (which conducts annual attorney seminars across the state), and is a Vice Chair of the Missouri Bar Probate and Trust Committee. Bob is a frequent author and lecturer in the estate planning and charitable giving areas. He has lectured on a variety of topics at seminars sponsored by ACTEC, The Missouri Bar, The Kansas Bar Association, The Oklahoma Bar Association, the Hawaii Tax Institute, the UCLA Institute on - iii -

22 Estate Planning, The MO-KAN Trust Conference, University of Missouri-Columbia, and the Estate Planning Councils of Baltimore, Louisville, Philadelphia and St. Louis. Bob holds a B.S. in accounting from William Jewell College (1980), a J.D. from the University of Missouri-Kansas City School of Law (1983), and an L.L.M. in estate planning from the University of Miami, Florida School of Law (1985). During his tenure at the UMKC School of Law, he served as Managing Editor of the UMKC Law Review. - iv -

23 UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT (UFADAA) AND DIGITAL ASSETS I. Introduction A. As technology continues to advance at a rapid pace, more and more of an individual s life and business is conducted electronically. Issues regarding how that property is accessed and managed implicate concerns of privacy and a complex network of state and federal laws. B. In recent years, several states and the Uniform Law Commission have attempted to address these issues through legislation. The Uniform Law Commission first promulgated the Uniform Fiduciary Access to Digital Assets Act, or UFADAA, in 2014, and then quickly thereafter drafted the Revised Uniform Fiduciary Access to Digital Assets Act, or RUFADAA, in response to concerns of privacy advocates, technology companies, and other groups. C. Advisors, planners, attorneys, and fiduciaries must keep updated on these laws and issues, in order to properly navigate these complex issues and provide the necessary advice to clients on how their estate plans should be drafted and modified in light of the ever increase rate of change in technology and properly administer trusts and estates holding digital assets. II. The Increasing Importance of Digital Assets A. In recent years, several cases have highlighted the increasing importance of digital assets in our lives. These cases often trigger special attention in the media, as they implicate the ubiquitous nature of digital information and social media, the importance of privacy, concerns about access to information by third parties or law enforcement, corporate interests, and the slippery slope of allowing access to information in special circumstances B. Motions to Compel Assistance by Apple in Federal Investigation (1) The ongoing dispute between Apple and the Department of Justice particularly illustrates these issues. (2) On December 2, 2015, Syed Riswan Farook and Tafshee Malik allegedly shot and killed 14 individuals and injured 22 others at the Inland Regional Center in San Bernardino, California. They later died during their pursuit by law enforcement. (3) As a preliminary matter, the case highlights the ubiquitous nature of social media. The FBI has determined that on December 2, 2015, a post on a Facebook page associated with Malik pledged allegiance to an individual associated with the Islamic State of Iraq and the Levant, sometimes referred - 1 -

24 to as ISIL, an organization that has been designated as a foreign terrorist organization by the U.S. State Department. 1 (4) During the investigation by law enforcement, a dispute has arisen over an iphone allegedly used by Farook. (5) Apple s Motion to Compel (a) (b) (c) According to documents filed by federal prosecutors, Farook had been issued an iphone by his employer, the San Bernardino County Department of Public Health. The government believes that Farook used the iphone to communicate with some of the individuals that he and his wife later killed. 2 The government believes that the phone may contain critical communications and data prior to and around the time of the shooting, and between Farook and Malik in earlier The FBI obtained a warrant to search the phone, and Farook s employer, the owner of the phone, also gave its consent to the search. But because the iphone requires a passcode to access the device, the government sought Apple s help in executing the warrant. Apple refused the government s request. On February 16, 2016, the Court ordered Apple to assist the FBI in its investigation. 4 (6) Apple s First Response (a) After the government served the Court s order on Apple, on February 16, 2016 Tim Cook, CEO of Apple, issued a public statement responding directly to the Order. The statement, titled A Message to Our Customers, stated that Apple believed that the FBI was asking it to create a new version of the iphone operating 1 Government s Motion to Compel Apple Inc. to Comply with this Court s February 16, 2016 Order Compelling Assistance in Search, In the Matter of the Search of an Apple iphone Seized During the Execution of a Search Warrant on a Black Lexus IS300, [hereinafter Motion to Compel ], at 4, available at: 2 Motion to Compel, at 1. 3 Motion to Compel, at 2, Motion to Compel, at

25 system, circumventing several important security features, and install it on the iphone recovered. 5 (b) Apple raised concerns that this technique could be used on other devices, and the equivalent of a master key, which could be used to unlock other devices. 6 (7) Prosecutors Subsequent Motion to Compel (a) (b) (c) Following the issuance of Apple s letter, federal prosecutors filed another motion, that is, Motion to Compel Apple Inc. to Comply with this Court s February 16, 2016 Order Compelling Assistance in Search. 7 Some commentators and journalists have suggested that it was not necessary for prosecutors to file a motion to compel compliance with the original court order, which itself compelled Appel to assist the government. In an article in the Wall Street Journal, Devlin Barrett and Daisuke Wakabayashi suggested that this second motion was not legally necessary, and instead, the chief purpose of the motion apparently was to push back against a forceful public letter released Wednesday from Apple Chief Executive Tim Cook criticizing the government s efforts. 8 The motion summarizes Apple s response: Apple appears to object based on a combination of a perceived negative impact on its reputation and marketing strategy numerous mischaracterizations of the requirements of the order, and an incorrect understanding of [the law]. 9 The motion continues, Rather than assist the effort to fully investigate a deadly terrorist attack Apple has responded by publicly repudiating that order Motion to Compel, at 2. 6 Motion to Compel, at 2. 7 See Devlin Barrett & Daisuke Wakabayashi, U.S. Says Marketing Is Reason Apple Won t Help Unlock Phone, Wall Street Journal (Feb. 19, 2016) [hereinafter Barrett & Wakabayashi ]. 8 Barrett & Wakabayashi. 9 Motion to Compel, at 6 7; see also Eric Lichtblau & Matt Apuzzo, Justice Department Calls Appel s Refusal to Unlock iphone a Marketing Strategy, New York Times (Feb. 19, 2016). 10 Motion to Compel, at

26 (d) The motion notes the ways that corporations policies on digital assets may be changing. The motion alleges that Apple s Legal Process Guidelines state that Apple will provide assistance with unlocking devices running ios versions earlier than 8.0. Apple allegedly has stated that it now objects to providing that assistance. 11 (8) Further Responses (a) (b) (c) Federal officials, Apple, and commentators have continued to make public statements regarding these motions, in what the Washington Post called a war of words between the government and Apple. 12 Apple has posted another letter online, asking the Justice Department to withdraw its request and let experts discuss the issue. 13 One key issue is whether Apple s assistance in this matter would be a slippery slope, either technologically or symbolically. i. Jason Healey, a former policy director for cybersecurity at the White House during the Bush administration, has stated, This is not a dragnet this is one guy s phone. 14 ii. But as noted above, Apple has argued that if this method is created here, it would be a master key that could be used in other situations, and that ordering Apple to comply would also set a dangerous precedent as a policy matter, that would lead the government to require others to comply in other situations. 15 (9) A hearing has been set for March 22 for the judge to hear from both sides. C. Data Regarding the Use of Social Media and Electronic Communication 11 Motion to Compel, at 2 n Mark Berman, Apple Tells Justice Dept. to Withdraw Demands for Help, Says Its Objections Are Absolutely Not About Marketing, Washington Post (Feb. 22, 2016). 13 See Berman, Apple Tells Justice Dept. For a copy of the letter, see Answers to Your Questions about Apple and Security, available at 14 Barrett & Wakabayashi. 15 Motion to Compel, at

27 (1) Statistics support our perception that digital assets and electronic communication continue to increase in importance, and that this importance lingers after, and perhaps is also highlighted by, the treatment of these assets after an individual s death. 16 (a) (b) (c) There are thirty million Facebook accounts that belong to dead people. The average individual has 25 passwords. Seventy-two percent of all U.S. adults use a social networking site. (2) Examples of Digital Assets. The following are examples of the many types of digital assets that can be held by an individual. Some of these assets have economic value, and others have important sentimental value. 17 (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) Airline rewards Hotel points accounts Social networking accounts Voic accounts Online photographs and videos Photograph and video sharing accounts (e.g., Instagram) itunes accounts and songs Web pages and blogs Online purchasing accounts (e.g., PayPal, Amazon) Bitcoins (3) Economic Value. While many of these assets, such as accounts, might have important sentimental value, one should keep in mind the important economic value of many of these assets. 16 Robert K. Kirkland, Pixar for Estate Planners: Who Gets Your Digital Stuff When You ve Logged Off for the Final Time, at 2 (February 17, 2016) [hereinafter Kirkland ]. 17 Kirkland, at

28 (a) A 2011 survey by McAfee found that the average value of a person s digital assets is $55, (b) An individual s blog can also generate significant revenue. In 2011, the Atlantic reported that the country s 10 most valuable blogs have an estimated total value of $785 million. 19 (c) Even a domain name or username itself can have significant value. i. The highest recorded sale of a domain name was the sale of vacationrentals.com, for a record $35 million in ii. iii. One popular Twitter account owned by Naoki Hiroshima has the Hiroshima has been offered $50,000 for the handle, and on one occasion the account was hacked, and blackmailed Naoki to get the account back. After a month, Twitter was apparently able to restore the account to Hiroshima. 21 As one example of potential abuse, in one case a partner in a medical practice gave his partner his password, so she could access his to read consultation reports. When a dispute arose over the partnership, the other partner allegedly continued to use the password to access the account to assist her in the dispute. The owner of the account sued and recovered $450,000 in damages. 22 (4) Economic Value of s and Personal Digital Assets. (a) (b) Even s and other accounts used primarily for personal reasons can have significant value in the right hands. An individual s s and personal digital files can also be valuable to a company, and can include client contact information and client 18 Kirkland, at Kirkland, at 39; Anne W. Coventry & Victoria Blachly, War and Peac: Battling the Tech Industry Back to the Negotiating Table over Fiduciary Access to Digital Property, ACTEC Fall Meeting, (Oct. 16, 2015) [hereinafter Coventry & Blachly ], at Coventry & Blachly, at Coventry & Blachly, at Coventry & Blachly, at 10; see Cheng v. Romo, No DJC, 2013 WL , at *1 3 (D. Mass. Nov. 28, 2012)

29 files. This information can be important to allow the continuation or sale of a business after an individual s death. (c) accounts often also include important information regarding an individual s finances. For example, an insured under a life insurance policy might only receive statements and other information through their address. If a fiduciary or family member cannot access that , then that individual may not be able to determine that such an insurance policy even exists. This failure to discover the insurance policy can lead to a financial loss by the beneficiaries, or a suit against the fiduciary for failure to identify the policy. (5) Sentimental and Emotional Value (a) (b) (c) (d) Aside from the potential economic value of these assets, one cannot overlook the sentimental and emotional value of these assets. Digital assets can include online photos, personal blogs, messages, and Twitter feeds. 23 These assets can help grieving loved ones learn more about the deceased and can help them find closure after a loss, particularly if that loss was unexpected or the result of a homicide or suicide. 24 Cases regarding an individual s attempt to access this type of information are discussed below. III. Terms of Service Agreements and Federal and State Laws Regarding Access to Digital Assets A. Terms of Service Agreements and Applicable Law (1) Access to digital assets and information is governed by a network of federal and states laws, as well as by private agreements between users and service providers. (2) Most of these laws are aimed to prevent misuse or abuse of digital assets by a third party, such as computer hacking. However, because these laws identify the scope of authorized access to a particular digital asset or account, these laws are implicated by an attempt by a fiduciary or a third 23 Coventry & Blachly, at Coventry & Blachly, at

30 party to access that information. It is against this backdrop that UFADAA and RUFADAA operate. (3) Every state prohibits unauthorized access to digital information, or what might be generally considered computer hacking. 25 (4) However, individuals and service providers are often principally concerned with the federal laws that prohibit unauthorized access. (5) As discussed in more detail below, the scope of many laws regarding access to a decedent s digital assets is based in part of the particular terms of service entered into by the provider and the decedent. B. Terms of Service Agreements (1) Nearly every commercial electronic service requires the user to enter into a particular agreement that governs the scope of the use of the service. This agreement is often called a Terms of Service Agreement or Terms of Use Agreement. 26 (2) Because applicable law is often based in part on a user s agreement with a particular provider, these agreements are of particular legal significance. (3) Some providers have more specific policies or options that relate to disposition of those assets upon death. (4) Below is a summary of the applicable terms of service agreements of several popular service providers. Notably, most of these service providers expressly prohibit granting a third party access to one s account. In recent years, however, some services have provided alternative means of allowing others to access one s account following death. 27 (5) Yahoo! (a) (b) The terms of service agreement of the electronic service Yahoo! Contains specific restrictions on transfer of the Yahoo! Account. The agreement provides, You agree that your Yahoo! account is non-transferable and any rights to your Yahoo! ID or contents within your account terminate upon your death. Upon receipt of a copy of 25 Kirkland, at 7; Coventry & Blachly, at Kirkland, at Kirkland, at 11 13,

31 a death certificate, your account may be terminated and all contents therein permanently deleted. 28 (c) Yahoo! justifies this policy based on the interests of privacy of a deceased individual, rather than on the desire of loved ones or a fiduciary to access that information. Yahoo! explains its policy thus: We know that dealing with the loss of a relative is very difficult. To protect the privacy of your loved one, it is our policy to honor the initial agreement that they made with us, even in the event of their passing. At the time of registration, all account holders agree to the Yahoo TOS. Pursuant to the TOS, neither the Yahoo account nor any of the content therein is transferable, even when the account owner is deceased. As a result, Yahoo cannot provide passwords or access to deceased users accounts, including account content such as . Yahoo does have a process in place to request that your loved one s account be closed, billing and premium services suspended, and any contents permanently deleted for privacy. 29 (6) Facebook (a) (b) Facebook s terms of service agreement expressly provides that the user may not share his or her password or allow others to access the account: You will not share your password (or in the case of developers, your secret key), let anyone access your account, or do anything else that might jeopardize the security of your account. 30 However, Facebook now allows an account to be memorialized. Through this process, a deceased individual s profile remains available only to Facebook friends, and sensitive information is removed Kirkland, at Coventry & Blachly, at 8 (quoting Options Available When a Yahoo Account Owner Passes Away, Yahoo! Help ) (emphasis added). 30 Kirkland, at Kirkland, at

32 (c) In 2015, Facebook initiated a Legacy Contact feature. This allows a user to designate someone to manage friend requests and other updates after death. 32 (7) Google (a) (b) Beginning in April 2013, Google allows a user to tell Google how his or her accounts should be handled when he or she dies or is unable to use the accounts. This feature is called the Inactive Account Manager. 33 The user can elect to have the account deleted, or can allow certain individuals to receive the information from the account. 34 (8) Apple itunes (a) (b) The service agreement of itunes provides that the user is only granted a license to download and use digital music files. 35 While a user may believe that he or she owns the itunes, the service agreement expressly prohibits their sale or transfer. But the terms of service agreement does not expressly mention death. 36 (9) Amazon s Kindle (a) Interestingly, Amazon s Kindle allows digital books to be transferred on death. Some commentators suggest that this provision is a response to consumer demand, and that perhaps other providers will follow suit. 37 C. Federal Laws 32 Kirkland, at Kirkland, at Kirkland, at Coventry & Blachly, at Coventry & Blachly, at Coventry & Blachly, at 6; Katy Steinmetz, From Here to E-ternity: What Happens to Your Virtual Things When You re Gone? Time (Feb. 11, 2013)

33 (1) Anti-hacking laws 38 (a) (b) Two particular federal laws, the Computer Fraud Abuse Act 39 and the Store Communications Act, 40 govern access to digital information. Basically, these statutes ban unauthorized access. If the terms of service or another applicable agreement does not allow a particular individual or party to access the information, then access is unauthorized and hence a criminal act. 41 This has implications for a fiduciary; if a fiduciary or a relative attempts to access an individual s information, and if that access is not covered by the provider s agreement, then that access can be a criminal act. (2) Stored Communications Act ( SCA ) 42 (a) (b) The SCA contains two particular provisions that are relevant to individual users, service providers, fiduciaries, and estate planning advisors. Prohibition of Unauthorized Access i. The SCA provides that it is a criminal offense for an individual to intentionally access without authorization a facility through which an electronic communication service is provided. 43 ii. Conduct which is authorized by a user of that service with respect to a communication or intended for that user is not criminalized. That is, under the statute, a user can consent to another individual s access to the user s account Kirkland, at U.S.C U.S.C. 2701(a), et seq.; Kirkland, at Coventry & Blachly, at U.S.C. 2701(a), et seq U.S.C. 2701(a) U.S.C. 2701(a)

34 (c) Prohibition of Unauthorized Disclosure i. The SCA provides that a service provider may not knowingly divulge to any person or entity the contents of a communication. 45 ii. iii. There are certain exceptions; for example, the provider can disclose that communication with the lawful consent of the originator or an addressee or intended recipient of such communication. 46 Providers can divulge non-content information, such as a catalog of the user s name, address, connection records, IP address and account information, because the SCA only prohibits the disclosure of the content. 47 (3) Computer Fraud Abuse Act ( CFAA ) 48 (a) (b) The CFAA also prohibits unauthorized access to computers. The U.S. Department of Justice takes the position that an individual violates this section, and can be criminally prosecuted, if that individual violates the rules of access in the provider s terms of service agreement. 49 There is no specific exemption or authorization for fiduciaries attempting to access a decedent s digital assets. D. State Laws 50 (1) In addition to the SCA and CFAA and state laws regarding hacking, several states have enacted statutes that specifically address the ability of a fiduciary or other individual to access digital assets of another individual. The enactment of these laws shows some recognition by the states of the U.S.C. 2702(a) U.S.C. 2702(b)(3). 47 Coventry & Blachly, at U.S.C Kirkland, at Kirkland, at

35 importance of this issue, 51 and a concern on the part of the states to address these issues, often independent from the promulgation of UFADAA and RUFADAA. (2) These statutes take a number of forms, and address differently the following issues: (a) (b) (c) (d) What types of digital information the fiduciary can access; Whether the fiduciary can copy or access the information of the account; Whether the fiduciary can take control of and continue the account; and Whether the fiduciary can access the contents of the communication, or only the information related to the sender and recipient of the communication. (3) Connecticut 52 (a) (b) (c) Connecticut s statute gives the personal representative the power to access or copy a decedent s electronic mail accounts. The statute specifically applies only to electronic mail, and not other digital accounts or assets. The statute provides that an electronic mail service provider shall provide access to copies of the electronic mail account of the decedent upon receipt of certain documents. Importantly, the statute does not give the fiduciary the ability to send or receive s or otherwise to take control over the account. The statute also expressly provides that it does not require a service provider to disclose any information in violation of any applicable federal law. (4) Delaware 53 (a) Delaware was the only state to adopt UFADAA, and it did so even before the Uniform Law Commission had finalized the model act. 51 Kirkland, at Conn. Gen. State. 45a-334a. 53 Del. Code Tit et seq

36 (b) The history of UFADAA and RUFADAA is discussed in more detail below. (5) Idaho 54 (a) (b) (c) (d) Idaho s statute appears to give the personal representative the greatest control over certain types of the decedent s digital accounts. Its statute provides, Except as restricted or otherwise provided by the will or by a [court] order, a personal representative, acting reasonably for the benefit of the interested persons, may properly [t]ake control of, conduct, continue or terminate any accounts of the decedent on any social networking website, any microblogging or short message service website or any service website. Importantly, the statute provides that the personal representative is not only authorized to copy the information, but may take control of and continue the account. This statute only applies to certain social networking, blogging, messaging, or service. (6) Indiana 55 (a) (b) (c) (d) Indiana s statute is broad in scope, and applies to any documents or information of the deceased person stored electronically. It requires the custodian of electronically-stored information to allow the personal representative to access or copy the decedent s information stored electronically. This statute purports to apply to the personal representative of the estate of a person domiciled in Indiana at the time of death. The statute also provides that a custodian may not destroy the electronically-stored documents or information of the person for two years after receiving a request to access or copy the information. The statute also provides that it does not require the custodian to disclose information in violation of any federal law, or to which the 54 Idaho Code (28) (regarding personal representative); see also Idaho Code (3)(z) (granting substantively similar powers to conservators of persons under a disability and minors). 55 Ind. Code

37 (7) Nevada 56 decedent would not have been permitted to access in the ordinary course of business. (a) (b) Subject to a restriction in a will or a court order, Nevada s statute allows the personal representative to direct the termination of any account of the decedent, including, without limitation, a social networking account, blog, messaging account, or account, or [a]ny similar electronic or digital asset of the decedent. Notably, this statute only allows the personal representative to terminate the account, and does not allow the personal representative to copy the contents. (8) Oklahoma 57 (a) (b) Oklahoma s statute is substantively identical to Idaho s. This statute gives the power to take control of, conduct, continue or terminate the decedent s , social networking, blogging or messaging service. While this statute only applies to certain , social networking, blogging, or messaging services, it grants the personal representative the power to continue the service, and not only the power to access or copy the information. (9) Rhode Island 58 (a) (b) (c) (d) Rhode Island s statute is substantially similar to Connecticut s, referenced above. The personal representative can access or copy a decedent s electronic mail accounts, but not other digital assets. As in Connecticut, the statute does not give the fiduciary the ability to send or receive s or otherwise to take control over the account. The statute also provides that it does not require a service provider to disclose any information in violation of any applicable federal 56 Nev. Rev. Stat Okla. Stat R.I. Gen. Laws to

38 (10) Virginia 60 law, and it contains a severability clause, so that if any portion of the statute is invalid, the remainder can still be effective. 59 (a) (b) Virginia s statute initially applied only to the estates of minors, but in 2015 it was expanded to apply to any individual, as part of Virginia s enactment of the Privacy Expectation Afterlife and Choices Act, or PEAC Act, discussed in more detail below. 61 Estates of Minors i. This statute was initially enacted in 2013, based on the efforts of the parents of Eric Rash. In 2011, Diane and Ricky Rash s 15-year-old son, Eric, committed suicide. His parents sought information about his death, and asked Facebook to grant them access to his account. Facebook denied the request, citing their policy that the contents of an account can only be disclosed with the consent of the owner. Mr. and Mrs. Rash worked with Virginia legislators to enact a law to allow the personal representative of a minor s estate to access the minor s digital accounts. 62 ii. iii. This statute provides that the personal representative of a deceased minor who was domiciled in the Commonwealth at the time of his death may assume the deceased minor s terms of service agreement for a digital account, in order to consent to and obtain the disclosure of the contents of the deceased minor s electronic communications and records. The statute expressly allows this consent to satisfy the consent required under the SCA, 18 U.S.C This access is subject to the same license, restrictions, or legal obligations of the deceased minor. 63 A digital account is defined as an electronic account that includes blogging, , multimedia, personal, social 59 R.I. Gen. Laws , Va. Code , Va. Chap. 657 (approved March 26, 2015). 62 See Coventry & Blachly, at Va. Code

39 networking, and other online accounts or comparable items as technology develops. 64 iv. The statute also expressly provides that the law does not require a provider to disclose any information in violation of any applicable state or federal law. 65 (c) Estates of Adults i. As for non-minors, Virginia law provides that upon the filing of the appropriate motion, the court shall order a provider to disclose to the personal representative the records of the decedent. 66 ii. iii. iv. Records is defined to include information that identifies the person with whom an account holder has engaged in an electronic communication, the time and date of the communication, and the electronic address of the person. Records expressly does not include the contents of that communication. 67 The court may only order disclosure of the contents of the account if the user consented, through a will provision or by providing affirmative consent in an account setting within the product or service or an affirmative election with a provider, to disclosure. 68 The statute expressly provides that this consent must be given affirmatively. Under the statute, Provisions within a terms of service agreement shall not constitute user consent to disclosure of the contents of the user s account. That is, the consent must be given by will, by a separate account setting in the account, or by some other affirmative election with the account Va. Code Va. Code Va. Code (A). 67 Va. Code Va. Code (B). 69 Va. Code (C)

40 E. UFADAA and RUFADAA 70 (1) Drafting of UFADAA (a) (b) (c) In early 2012, the Uniform Law Commission formed a drafting committee to draft a model act that would address the authority of fiduciaries to access, copy, and manage digital assets. Importantly, the draft was not designed to govern ownership or succession of ownership. 71 The model act, the Uniform Fiduciary Access to Digital Assets Act, or UFADAA, was drafted in late 2012 and early It was revised in drafting meetings in November 2013 and March 2014, and at the Commission s annual meeting in July 2014, the Commission unanimously approved UFADAA by a vote of 50 to UFADAA was proposed in approximately 27 states, but only Delaware enacted UFADAA in this form. 73 (2) UFADAA faced opposition from a number of fronts. Of particular interest are the following arguments made against UFADAA. (a) (b) Privacy. Certain privacy advocates, such as the ACLU and the Center for Democracy, and service providers raised concerns that UFADAA would result in violations of individuals and decedents privacy, and would too freely allow access to an individual s private thoughts and communications. 74 Federal Preemption. Service providers were also concerned that this state law would be preempted by federal law, and would result in a confusion regarding the authority of a fiduciary Copies of UFADAA and RUFADAA are attached in Exhibit A as well as charts prepared by the Uniform Law Commission on the introduction of UFADAA in the different states and the major differences between UFADAA and RUFADAA. 71 Kirkland, at Kirkland, at Kirkland, at Kirkland, at 20; Coventry & Blachly, at 13 14, Coventry & Blachly, at

41 (c) Cost. Some commentators have suggested that cost of compliance was also a concern, although this concern was not loudly voiced compared to the arguments regarding privacy and federal preemption. 76 (3) Ultimately, of these approximately 27 states that considered UFADAA, only Delaware enacted UFADAA. In fact, Delaware enacted it even before it its final approval in July (4) Alternative Proposals (a) PEAC Act i. Netchoice responded by drafting the Privacy Expectation Afterlife Choices Act (the PEAC Act, pronounced Peace ). 78 ii. iii. iv. The PEAC Act allows the personal representative of a decedent s estate, by a court order, to access a log of general regarding the decedent s communications, such as the addressee and the time it was sent. The personal representative can access the content of the communications, again through a court order, if the decedent has given express consent to this disclosure. 79 The PEAC Act also included a broad release and indemnification of service providers from civil or criminal liability if the provider complied in good faith with a court order. 80 The PEAC Act was adopted in Virginia, in a slightly modified form. The provisions of the Virginia statutes are discussed above Coventry & Blachly, at Kirkland, at Coventry & Blachly, at Coventry & Blachly, at Coventry & Blachly, at See Va. Code , ; Coventry & Blachly, at

42 (b) RUFADAA i. At the request of service providers, the Uniform Law Commission then brought together various advocates for a re-group. In 2015, a group of representatives from the Uniform Law Commission and counsel (but not lobbyists) from some of the service providers, and as a result of these discussions a new consensus emerged among privacy advocates, service providers, and attorneys. 82 ii. iii. A revised model was then produced, which was named the Revised Uniform Fiduciary Access to Digital Assets Act, or RUFADAA. 83 According to the Uniform Law Commission s website, RUFADAA has been introduced in the following 17 states: Indiana, Iowa, Maine, Maryland, Michigan, Mississippi, Nebraska, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Utah, Washington, West Virginia, Wisconsin, and Wyoming. No state has yet enacted RUFADAA. 84 (5) Provisions of RUFADAA (a) Section 2 of RUFADAA includes the definitions of terms used in RUFADAA. The definition of the word digital asset is particularly broad; the drafting committee considered numerous drafts of this term. (b) Section 2 includes the following definitions: 85 (1) Account means an arrangement under a terms-ofservice agreement in which a custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user. 82 Coventry & Blachly, at Kirkland, at Uniform Law Commission, Fiduciary Access to Digital Assets Act, Revised (2015): Enactment Status Map, available at Access to Digital Assets Act, Revised (2015). 85 RUFADAA,

43 (4) Catalogue of electronic communications means information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person. (6) Content of an electronic communication means information concerning the substance or meaning of the communication which: (A) has been sent or received by a user; (B) is in electronic storage by a custodian providing an electronic communication service to the public or is carried or maintained by a custodian providing a remote computing service to the public; and (C) is not readily accessible to the public. (8) Custodian means a person that carries, maintains, processes, receives, or stores a digital asset of a user. (10) Digital asset means an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record. (22) Record means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. (24) Terms of service agreement means an agreement that controls the relationship between a user and a custodian

44 (c) Applicability 86 i. Section 3 of RUFADAA governs its applicability. ii. iii. iv. Section 3 provides that RUFADAA applies to a personal representative under a will or power of attorney, a conservator acting on behalf of an individual, and a trustee. It expressly provides that RUFADAA applies to any of these individuals whether or not the governing instrument was executed before or after the date of enactment of RUFADAA. Section 3 also specifies that RUFADAA does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer s business. (d) Direction by User for Disclosure i. Section 4 provides that a user may consent to disclosure of his or her electronic communications, either online or in a paper record. This consent will override any prohibition in a terms of service agreement that would prohibit this disclosure. 87 However, Section 5 provides that RUFADAA only overrides a provider s terms of service agreement to the extent of the user s consent to disclosure. 88 ii. iii. The user may signify this consent in an online tool with the service provider, or through a will, power of attorney, or other instrument. 89 If the user has not consented to disclosure, then the provider is not required to disclose the electronic information. 90 (e) Procedures for Access RUFADAA, RUFADAA, 4(c). 88 RUFADAA, RUFADAA, 4(a), (b). 90 Kirkland, at RUFADAA,

45 i. Section 6 provides that in disclosing the digital assets, the custodian of the digital assets may, at its discretion, grant the fiduciary full or partial access to the user s account, or a copy of the record. ii. iii. iv. A custodian may assess a reasonable administrative charge for this service. Items that are deleted by the user need not be produced. A custodian who considers that the request is an undue burden, including if the custodian believes that segregating assets based on those to which the user consented and those to which the user did not consent, the custodian may petition a court for clarification. (f) Disclosure i. As to the content of electronic communications, if a deceased user has consented to disclosure, then the custodian shall disclose the content of the electronic communications to the personal representative of the estate of the deceased user, provided that the personal representative provides certain documentation to the provider. This documentation includes a copy of the user s will, trust, power of attorney, or other record evidencing consent. 92 ii. iii. Unless the deceased user prohibited disclosure of digital assets, and whether or not a deceased user consented to disclosure, the custodian shall disclose to the personal representative of the estate of the deceased user the catalog of electronic communications of the user, which does not include content of those communications. 93 Sections 9 and 10 contain similar provisions regarding disclosure of the content of electronic communications to an agent acting under a power of attorney, and Sections 12 and 13 contain similar provisions regarding disclosure to the trustee of a trust established by an individual who was not 92 RUFADAA, RUFADAA,

46 the trustee, and Section 14 contains similar provisions regarding disclosure to a conservator. 94 iv. Service providers would be well advised to develop procedures for reviewing these records to determine whether a given document sufficiently consents to disclosure of a particular asset, or sufficiently prohibits disclosure of a particular asset. (g) Fiduciary Duty and Immunity i. Section 15 sets forth the general fiduciary duty and authority of a fiduciary related to digital assets. The fiduciary has the same duties as apply to tangible personal property, including the duties of care, loyalty, and confidentiality. 95 ii. iii. Section 15 also provides that a fiduciary is subject to other agreements and laws, such as other provisions of the provider s terms of service agreement, and copyright law. That section also provides that a fiduciary has the right to access the digital assets subject to RUFADAA for purposes of applicable federal and state laws regarding computer hacking and computer fraud. 96 Section 16 provides that a custodian and its officers, employees, and agents are immune from liability for any act done in good faith to comply with the provisions of RUFADAA. 97 (6) Key Distinctions Between UFADAA and RUFADAA (a) (b) Compared to the prior act, RUFADAA contains several key provisions that reflect the concerns of privacy advocates and technology companies. RUFADAA expressly sets forth the fiduciary duties of the fiduciary with respect to digital assets, in Section 15. Critics of UFADAA had noted that it simply referred to definitions of fiduciary duty 94 RUFADAA, 9, 10, 12, 13, RUFADAA, 15; see Kirkland, at RUFADAA, 15; see Kirkland, at RUFADAA, 16; see Kirkland, at

47 found in other applicable law, which service providers and privacy advocates found to be unclear. 98 (c) OPT OUT versus OPT IN 99 i. Under UFADAA, many of the provisions allowed a fiduciary to gain access to a digital asset, unless a governing instrument otherwise prohibited access. That is, the fiduciary could access these assets in most cases, unless the user opted out of access. ii. iii. However, under RUFADAA, the user must affirmatively opt in to granting access in order for the fiduciary to access the digital assets. Under RUFADAA, the fiduciary can still obtain a catalog of the electronic communications without an express provision in the governing instrument or a court order. F. Governing Law (1) As noted above, many state laws purport to grant rights to a personal representative of a decedent who died domiciled in that state. (a) (b) Indiana grants the personal representative access to any documents or information of the deceased person stored electronically, and not only s and communications. Indiana s statute purports to apply if the decedent was domiciled in Indiana, even if the documents are located elsewhere. 100 Virginia similarly purports to apply its statute to the personal representative of a user domiciled in Virginia, and grants its courts power to require service providers, wherever located, to produce certain information. 101 (2) The terms of service agreements of Yahoo!, Facebook, and Google each state that the agreement is governed by California law. 98 Coventry & Blachly, at Coventry & Blachly, at Ind. Code See Va. Code , (A), (B)

48 (3) The question might arise if a decedent s state of domicile would grant a personal representative certain powers, but the terms of service would apply a different state s law. This issue is sure to present itself in the future as more states adopt laws addressing access to a decedent s digital assets. 102 (4) Of course, as a uniform act, UFADAA and RUFADAA each would encourage uniformity of application and construction. See RUFADAA, Section 17. If numerous states enact these statutes, then the issue of choice of law may be muted. (5) The terms of service agreement might also include a requirement that any action under the agreement be brought in California. 103 In Ajemian, discussed below, a trial court in Massachusetts initially dismissed an action against a service provider, concluding that the forum selection clause in a terms of service agreement required the action to be brought in California, not Massachusetts. On appeal in that case, the Court concluded that Yahoo! had not carried its burden to demonstrate that the forum selection clause was reasonably communicated and accepted, and based on all of the facts and circumstances, the Court declined to enforce the forum selection clause. 104 However, this issue of governing law and forum selection is sure to appear again in the future. G. Concerns of Access (1) Potential Liability under the SCA, the CFAA, and Applicable State Law (a) (b) Based on the SCA, the CFAA, and applicable state laws, if a fiduciary attempts to access a decedent s accounts and is not authorized to do so by the provider s terms of service agreement, that fiduciary would technically be committing a criminal act. 105 Of course, a surviving spouse or an individual fiduciary may be willing to take that risk, and may simply use the decedent s passwords or other information to access the information See Kirkland, at See, e.g., Ajemian v. Yahoo!, Inc., 987 N.E.2d 604, 607 (Mass. Ct. App. 2013). 104 Id. at Kirkland, at Coventry & Blachly, at

49 (c) However, a professional fiduciary may be more reluctant to take any such risk. 107 (2) Prosecutions under the SCA and CFAA (a) (b) There have been prosecutions of individuals under the SCA and the CFAA, although the documented cases may arise in circumstances that suggest abuse. As noted above, the Justice Department views any violation of the CFAA as a criminal act. 108 But the Justice Department has stated that it is not its intent to pursue minor violations of the CFAA. 109 (c) United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009). i. In 2006, a mother created a fake MySpace profile in violation of MySpace s terms of service, allegedly in order to bully a child. The child later committed suicide. The mother was prosecuted and convicted solely under the CFAA. A jury found the mother guilty of a misdemeanor violation of the CFAA. 110 ii. iii. The trial judge overturned her conviction, concluding that the conscious violation of a website s terms of service, by itself, is not automatically a criminal violation of the CFAA, as such a reading would be void for vagueness and thus unconstitutional. 111 The Court also concluded that there was nothing in the legislative history of the CFAA that would suggest that its purpose was to curb cyberbullying, and that the purpose of the CFAA seemed to be directed at more traditional 107 Coventry & Blachly, at Kirkland, at Coventry & Blachly, at 7; see Cyber Security: Protecting America s New Frontier, Heraing Before the Subcomm. on Crime, Terrorism, and Homeland Sec., House Comm. on the Judiciary, 112th Cong. (2011) (statement of Richard Downing, Deputy Chief, Computer Crime and Intellectual Prop. Sec., Crim. Div., Dep t of Justice). 110 United States v. Drew, 259 F.R.D. 449, (C.D. Cal. 2009). 111 Id. at

50 examples of computer hacking and the uses of computers to commit fraud. 112 iv. While the mother was ultimately acquitted by the trial judge, it was only after a full trial on the issue. This case presents an example of how a prosecution under the CFAA can proceed, and may chill the behavior of individuals who believe that a violation of the CFAA may have no consequences. (3) Court Orders (a) (b) Some courts have addressed a situation in which a fiduciary or other individual has sought a court order to allow access to the decedent s digital information. While this may be preferable to a fiduciary who attempts to access the information independently, and possibly in violation of law, courts have not provided clear guidance regarding whether a fiduciary can access the accounts of a deceased individual. These cases address the situations in which a service provider is asked to disclose information, and the extent to which a given action by an individual or a personal representative can qualify as consent under the SCA, and the implications of that consent. (c) In re Facebook, Inc., 923 F. Supp. 2d 1204 (N.D. Cal. 2012). 113 i. In 2012, beauty queen Sahar Daftary fell to her death from the twelfth floor of an apartment building in Manchester, England. It was suggested that the death could have been a suicide, and Sahar s two surviving family members contested this view. As the coroner s office was determining the cause of death, it requested Sahar s family members to submit evidence of her state of mind in the days leading up to her death. The family members sought to overturn this cause of death, and they subpoenaed information from Facebook regarding her account. The family members believed that this information would shed light on Sahar s state of mind in the days leading up to her death Id. at 451 n Kirkland, at 8 9; Coventry & Blachly, at F. Supp. 2d at

51 ii. iii. The court quashed the subpoena; it reasoned that her family members consent on Sahar s behalf made no distinction. The court reasoned, Under the plain language of Section 2702, while consent may permit production by a provider, it may not require such a production. Id. at 1206 (emphasis in original). But the court concluded that Facebook could conclude that the family s consent was sufficient, which would allow Facebook to voluntarily disclose the information. The court noted, Of course, nothing prevents Facebook from concluding on its own that Applicants have standing to consent on Sahar s behalf and providing the requested materials voluntarily. Id. at (d) Negro v. the Superior Court of Santa Clara County, 230 Cal. App. 4th 879 (2014). i. In Negro, a California appellate court held that the SCA allows, but does not require, disclosure by a service provider, and thus a court can compel the service provider to disclose that information. 115 ii. iii. iv. In that case, an employee and Google sought to quash a subpoena served on Google by the employee s former employer. The court had ordered the employee to consent to disclosure of the employee s s, and the court then determined that this consent was sufficient under the SCA to constitute consent. The court held that the consent by the employee was effective, and thus the SCA permitted, but did not require, the service provider to disclose the information. Google cited the Facebook case, discussed immediately above, and argued that this case demonstrated that even if consent has been given, the SCA still only permits a provider to disclose the information, and a court may not order its production. The court in Negro declined to follow the reasoning of the court in Facebook and it also suggested that the reasoning of the court in Facebook, which apparently would not require 115 Kirkland, at

52 a provider to follow a court order even if consent had been given, was dictum. 116 v. The court reasoned that because the SCA did not prohibit disclosure under those facts, the service provider could be ordered by the court to produce the documents. 117 vi. vii. Some commentators suggest that Negro stands for the proposition that consent must be expressly given by the individual in order to allow a court to order disclosure. These commentators argue that a fiduciary cannot give that consent on the part of a deceased individual, and thus under the SCA a provider would be prohibited from disclosing that information and could not even be ordered by a court to produce it. 118 In the future, courts may need to determine whether consent by a fiduciary, who stands in the shoes of the decedent in other respects, is sufficient to qualify as consent under the SCA. 119 (e) Ajemian v. Yahoo!, Inc., 987 N.E.2d 604 (Mass. Ct. App. 2013). i. In this case, the co-administrators of their brother s estate brought an action for a declaratory judgment against Yahoo!, asking that the court declare that the messages in the brother s Yahoo! account were property of the estate. 120 ii. iii. Yahoo! refused to accept a co-administrator s authority to access his deceased brother s Yahoo s, even though the surviving brother had opened the account and had shared access to it, but had forgotten the password. The court concluded that the provisions of the terms of service agreement were only binding if Yahoo! carried its burden of showing that the terms were reasonably communicated and accepted by the user. The court Cal. App. 4th at 901 & n Cal. App. 4th at Coventry & Blachly, at Coventry & Blachly, at N.E.2d at

53 distinguished between a clickwrap agreement, which requires the user to affirmatively click I agree on a box, and a browsewrap agreement, which would only make the agreement available through a link. 121 iv. The court suggested that only the terms of a clickwrap agreement would be enforceable, as those agreements gave the individual the opportunity to review the document and required the individual to click that he or she consented to the terms. 122 IV. Estate Planning and Drafting for Digital Assets A. In light of the reluctance of service providers to grant a fiduciary access to a given digital asset, it is important to address digital assets in the planning process. B. Inventory of digital assets (1) Some commentators suggest that the client develop an inventory of digital assets to assist the attorney in identifying key issues, similar to the way a client would develop and maintain an inventory of financial assets. 123 While one commentator notes that completing this inventory will take significant pushing and prodding by the attorney, this process is valuable and should not be overlooked. (2) This inventory should include the individual s passwords, usernames, and similar keys, for ease of organization and reference. (3) Storage and Retention of Inventory (a) (b) If this inventory of digital assets is to contain sensitive information such as passwords and usernames, the question arises of how this information should be stored. Paper Form i. The inventory could be kept in paper form, in a safe deposit box. While this paper option would prevent the inventory from being hacked, there are disadvantages. 121 Id. at 613; see also Coventry & Blachly, at Id. at Kirkland, at

54 ii. iii. A paper file can be outdated quickly as an individual updates his or her accounts, digital assets, and passwords. In addition, the paper could be inadvertently destroyed, because family members may not identify this paper as an important document. 124 (c) Electronic Form i. As an alternative, the inventory can be scanned, and this scan can be protected with a single password. 125 ii. iii. There are also electronic services that allow to keep your passwords. 126 One concern, however, is that the fiduciary may not know where to look to find the electronic inventory, or, once found, the fiduciary may not have the encryption code. 127 (4) Some commentators warn that given the value of this document, which can contain passwords, the estate planning attorney should not retain this in the file. Instead, the estate planning attorney can offer to hold one piece of the encryption puzzle, such as the scanned document, or the password to access it but not both. 128 C. Power of Attorney (1) As part of an individual s estate planning documents, a power of attorney should also allow the agent to access digital assets. (2) Below is sample language that could be inserted into a power of attorney. (3) EXAMPLE 1: Permissive Language in Power of Attorney 124 Kirkland, at Kirkland, at Kirkland, at Kirkland, at Coventry & Blachly, at 11. [My Agent shall have the power] to access and obtain all digital or electronic data that may be stored on my desktop, laptop, tablet, or other computer, peripheral drive, storage device, mobile telephone or any similar device, including

55 without limitation, all internet accounts (including accounts, itunes, financial reports and archives of the same), on-line photographs and videos, on-line music, on-line documents, all licenses to on-line items and software, social network accounts, domain registrations, DNS service accounts, web hosting accounts, on-line stores, tax preparation service accounts, file sharing accounts, computer backup processes, and user passwords and other security access to any of the foregoing, and all similar digital items which current exist or may exist as technology develops. 129 (4) EXAMPLE 2: Alternative Permissive Language in Power of Attorney Durable Power of Attorney. The attorney-in-fact shall have (a) the power to access, use, and control my digital devices, to include but not be limited to, desktops, laptops, tablets, storage devices, mobile telephones, smartphones, and any similar digital device which currently exists or may exist as technology develops for the purpose of accessing, modifying, deleting, controlling, or transferring my digital assets, (b) the power to access, modify, delete, control, and transfer my digital assets, wherever located and to include but not be limited to, my s received, accounts, digital music, digital photographs, digital videos, software licenses, social network accounts, file sharing accounts, financial accounts, banking accounts, domain registrations, web hosting accounts, tax preparation service accounts, online stores, affiliate programs, other online accounts, and similar digital items which currently exist or may exist as technology develops, and (c) the power to obtain, access, modify, delete, and control my passwords and other electronic credentials associated with my digital devices and digital assets described above. This authority is intended to constitute lawful consent to a service provider to divulge the contents of any communication under The Stored Communications Act (currently codified as 18 U.S.C et seq.), to the extent such lawful consent is required, and an attorney-in-fact acting hereunder shall be an authorized user for purposes of applicable computer-fraud and unauthorized-computer-access laws Kirkland, at Coventry & Blachly, Exhibit A, at

56 (5) This language should be included in the power of attorney even if applicable law already grants these powers to an agent. 131 Many service providers will demand that this language be in the document itself. Including the language in the document also avoids a situation in which parties dispute which state s laws to apply, and thus which default powers of the agent to apply. (6) Including this language can also allow the estate planning attorney to tailor the language based on his or her experience, to be sufficiently broad. If there are digital assets of particular economic or sentimental value, the power of attorney can expressly refer to those assets. 132 D. Will and Trust: Drafting for Control and Disposition of Digital Assets (1) An individual may wish to grant broad power to a fiduciary to access his accounts, or, conversely, an individual may wish to limit the ability of the fiduciary to access those accounts. Below are examples of sample language drafted by commentators. (2) In light of the fact that many federal and state laws only allow disclosure of electronic documents if the individual has expressly consented, it is advisable to insert such consent into the will or trust. (3) EXAMPLE 3: Permissive Language in Will or Trust 131 Kirkland, at Kirkland, at 17. Powers and authorizations regarding digital property. The personal representative may exercise all powers that an absolute owner would have and any other powers appropriate to achieve the proper investment, management, and distribution of: (1) any kind of computing device of mine; (2) any kind of data storage device or medium of mine; (3) any electronically stored information of mine; (4) any user account of mine; and (5) any domain name of mine. The personal representative may obtain copies of any electronically stored information of mine from any person or entity that possesses, custodies, or controls that information. I hereby authorize any person or entity that possesses, custodies, or controls any electronically stored information of mine or that provides to me an electronic communication service or remote computing service, whether public or private, to divulge to the personal representative: (1) any electronically stored information of mine; (2) the contents of any communication that is in electronic storage by that

57 service or that is carried or maintained on that service; and (3) any record or other information pertaining to me with respect to that service. This authorization is to be construed to be my lawful consent under the Electronic Communications Privacy Act of 1986, as amended; the Computer Fraud and Abuse Act of 1986, as amended; and any other applicable federal or state data privacy law or criminal law. The personal representative may employ any consultants or agents to advise or assist the personal representative in decrypting any encrypted electronically stored information of mine or in bypassing, resetting, or recovering any password or other kind of authentication or authorization, and I hereby authorize the personal representative to take any of these actions to access: (1) any kind of computing device of mine; (2) any kind of data storage device or medium of mine; (3) any electronically stored information of mine; and (4) any user account of mine. The terms used in this paragraph are to be construed as broadly as possible, and the term user account includes without limitation an established relationship between a user and a computing device or between a user and a provider of Internet or other network access, electronic communication services, or remote computing services, whether public or private. 133 (4) EXAMPLE 4: Alternative Permissive Language in Will or Trust (abbreviated) 133 Kirkland, Exhibit B. My Personal Representative or Trustee shall have the power and authorization to access, take control of, conduct, continue, or terminate my accounts on any website, including any social networking site, photo sharing site, micro blogging or short message service website or any service website. All such websites may release my logon credentials, including username and password, to my Personal Representative or Trustee, and the website shall be indemnified and held harmless by my estate for any damages, causes of action or claims that may result from this disclosure. This authority is intended to constitute lawful consent to a service provider to divulge the contents of any communication under The Stored Communications Act (currently codified as 18 U.S.C et seq.), to the extent such lawful consent is required, and a Personal Representative or Trustee acting hereunder shall be an

58 authorized user for purposes of applicable computer-fraud and unauthorized-computer-access laws. 134 (5) EXAMPLE 5: Alternative Permissive Language in Will or Trust (comprehensive) 134 Coventry & Blachly, Exhibit A, at 1 2. My Personal Representative or the Trustee may take any action (including, without limitation, changing a terms of service agreement or other governing instrument) with respect to my Digital Assets and Digital Accounts as my Personal Representative or the Trustee shall deem appropriate, and as shall be permitted under applicable state and Federal law. My Personal Representative or the Trustee may engage experts or consultants or any other third party as necessary or appropriate to effectuate such actions with respect to my Digital Assets or Digital Accounts, including, but not limited to, such authority as may be necessary or appropriate to decrypt electronically stored information or to bypass, reset or recover any password or other kind of authentication or authorization. If my Personal Representative or the Trustee shall determine that it is necessary or appropriate to engage and delegate authority to an individual pursuant to this paragraph, it is my request that [DIGITAL ASSET FIDUCIARY] be engaged for this purposes. This authority is intended to constitute lawful consent to a service provider to divulge the contents of any communication under The Stored Communications Act (currently codified as 18 U.S.C et seq.), to the extent such lawful consent is required, and a Personal Representative or Trustee acting hereunder shall be an authorized user for purposes of applicable computer-fraud and unauthorized-computer-access laws. The authority granted under this paragraph shall extend to all Digital Assets and Digital Accounts associated with or used in connection with the Business (as defined herein). The authority granted under this paragraph is intended to provide my Personal Representative or the Trustee with full authority to access and manage my Digital Assets and Digital Accounts to the extent permitted under applicable state and Federal law and shall not limit any authority granted to my Personal Representative or the Trustee under such laws. Digital Account means an electronic system for creating, generating, sending, sharing, communicating, receiving, storing, displaying or processing information which

59 provides access to a Digital Asset stored on a digital device, regardless of the ownership of such digital device. Digital Asset shall include files created, generated, sent, communicated, shared, received or stored on a digital device, regardless of the ownership of the physical device upon which the digital item was created, generated, sent, communicated, shared, received or stored. 135 (6) EXAMPLE 6: Restrictive Language in Will Despite any provision herein to the contrary, my Personal Representative shall have no power or authorization to access, view, take control of or terminate any of my electronic communications, as defined under 18 U.S.C et seq., including any data or information in my account, social networking profile, blog or short message service, or any copy of the contents thereof, and any electronic communications service that has custody of my electronic communications shall be under no obligation to release any of my electronic communications to my Personal Representative or any other person. 136 (7) A separate question arises of the extent to which the will or trust should direct the disposition of assets or even their destruction. The estate planner or fiduciary should consider carefully any request by the individual to destroy his or her digital property. On the one hand, such a request may be a clear expression of the individual s intent. On the other hand, such information may have important economic or sentimental value to the beneficiaries or family members, and they may later complain that information was improperly destroyed. E. Digital Asset Authorization (1) In addition, a separate document can be executed which expressly grants authorization regarding digital assets. Just as an attorney might prepare a separate document related to disclosure of health care records in light of HIPAA, so, too, might an attorney prepare such an authorization regarding digital assets. (2) Such a form should be executed before a notary public, to address any concerns of a service provider regarding authenticity of the signature. 135 Coventry & Blachly, Exhibit A, at Coventry & Blachly, Exhibit A, at

60 V. Conclusion (3) EXAMPLE 7: Authorization and Consent for Release of Electronically Stored Information I hereby authorize any person or entity that possesses, custodies, or controls any electronically stored information of mine or that provides to me an electronic communication service or remote computing service, whether public or private, to divulge to my then-acting fiduciaries at any time: (1) any electronically stored information of mine; (2) the contents of any communication that is in electronic storage by that service or that is carried or maintained on that service; and (3) any record or other information pertaining to me with respect to that service. The terms used in this authorization are to be construed as broadly as possible, and the term fiduciaries includes an attorney-in-fact acting under a power of attorney document signed by me, a guardian or conservator appointed for me, a trustee of my revocable trust, and a personal representative (executor) of my estate. This authorization is to be construed to be my lawful consent under the Electronic Communications Privacy Act of 1986, as amended; the Computer Fraud and Abuse Act of 1986, as amended; and any other applicable federal or state data privacy law or criminal law. This authorization is effective immediately. Unless this authorization is revoked by me in writing while I am competent, this authorization continues to be effective during any period that I am incapacitated and continues to be effective after my death. Unless a person or entity has received actual notice that this authorization has been validly revoked by me, that person or entity receiving this authorization may act in reliance on the presumption that it is valid and unrevoked, and that person or entity is released and held harmless by me, my heirs, legal representatives, successors, and assigns from any loss suffered or liability incurred for acting according to this authorization. A person or entity may accept a copy or facsimile of this original authorization as though it were an original document Kirkland, Exhibit C

61 A. As noted above and reflected in an increasing number of media stories and court cases, disputes regarding the access to and management of an individual s electronic information implicate a number of issues and concerns, including privacy and a network of state and federal laws. B. Several states and service providers had independently attempted to address these concerns. C. RUFADAA represents an effort by the Uniform Law Commission to develop a uniform standard to address these issues. The fact that it was developed in response to the concerns of privacy advocates and service providers suggests that RUFADAA may strike the correct balance and gather sufficient support to allow the law to advance in a uniform and predicable fashion. D. Advisors, planners, attorneys, and fiduciaries must carefully monitor developments in this area in order to properly navigate these complex issues

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82 ABA BRIEFING SERIES 2016 Trust and Estate Planning Briefing Series February December :00 3:00 p.m. ET The 2016 Trust and Estate Planning Series featured presenters are, Thomas W. Abendroth, partner, Schiff Hardin LLP and Charles Skip D. Fox IV, partner, McGuireWoods LLP. These nationally-recognized trust and estate attorneys and tenured teachers from the ABA Trust Schools will provide you and your staff with critical information on estate planning and trust administration topics. This series is an excellent business development opportunity; invite outside counsel to attend these informative programs at your location. The New Paradigm in Trusts and Estates Valuation Thursday, April 7, CISP, 2.5 CRSP, 2.5 CTFA (TAX), 2.0 CPEs for CPAs (Regulatory Ethics), 2.0 CFP The estate planning community is waiting with nervous anticipation for expected new IRS regulations that are likely to impact the use of valuation discounts in estate and gift transfers, in particular for family owned investment entities. This briefing will discuss the new regulations and implications on estate planning. Topics to be discussed are: Legal and Economic Basis for Valuation Discounts Past IRS Attempts to Regulate Discounts Section 2704 Rules and Application to Family LPs and LLCs New Valuation Regulations Planning Under the New Regulations Fiduciary Litigation Roundtable Thursday, May 5, CISP, 2.5 CRSP, 2.5 CTFA (FID), 2.0 CPEs for CPAs (Business Law), 2.0 CFP A panel of attorneys will discuss current trends in fiduciary litigation and how to minimize a trustee s exposure. Topics will include: Current fiduciary litigation cases Diversification and Other Investment Disputes Keeping Beneficiaries Informed Decanting Closely-Held Assets in Trusts Charitable Tales from the Crypt Thursday, June 2, CISP, 2.5 CTFA (TAX), 2.0 CPEs for CPAs (Taxes), 2.0 CFP Frequent misuse of the charitable deduction, and the most recent errors made in charitable planning will be discussed during this briefing. Qualifying for the Estate Tax Charitable Deduction Qualifying for the Income Tax Charitable Deduction Avoiding the Imposition of Capital Gains on a Charitable Foundation Problems with Private Foundations Challenges with Charitable Remainder Trusts Issues with Art and Other Collectibles in the Administration of Trusts and Estates Thursday, September 8, CTFA (INV), 2.0 CPEs for CPAs (Finance), 2.0 CFP Artwork and other tangible collectibles are unique assets that present many challenges to fiduciaries. Best practices in dealing with these unique assets and protecting their value in the trust and estate administration context will be discussed. Confusing Legal Environment of Local, State, Federal and International Rules Verifying Authenticity and Good Title Limitations on Sales of Art such as Endangered Species Restrictions and Cultural Heritage Limitations Rights of Artists Ways to Sell Art Securing Art Special Considerations with Collectibles such as Guns Are You a Fiduciary? Thursday, October 6, CISP, 2.5 CRSP, 2.5 CSOP, 2.5 CTFA (FID), 2.0 CPEs for CPAs (Administrative Practice), 2.0 CFP The role of the fiduciary is far more complicated than it was 25 years ago. In the trusts and estates context, the fiduciary role is often now bifurcated in any number of ways. In the non-trust asset management context, fiduciary obligations have been greatly expanded. This session will discuss some of the major issues surrounding the fiduciary role in wealth management. Fiduciary Role in Trusts o Co-Trustees o Delegation of Authority o Directed Trusts Non-Trustee Fiduciary Roles in Trusts o Trustee Appointers and Removers o Trust Protectors o Distribution Committees Fiduciary Roles under ERISA and New DOL Proposed Rules Fiduciary Roles for Investment Advisers Outside of ERISA Twenty Steps to Avoid Fiduciary Litigation Thursday, November 3, CISP, 2.5 CRSP, 2.5 CSOP, 2.5 CTFA (ETH), 2.0 CPEs for CPAs (Admin. Practice), 2.0 CFP The best defense against claims of a breach of fiduciary duty is to have procedures that prevent them in the first place. Best practices for minimizing claims will be discussed.

83 Duty of Loyalty Steps to Take in Opening Relationships Steps to Take when Taking Over Another Trust Department Communications with Beneficiaries Fees Accountings Seeking Court Approval Recent Developments in Estate and Trust Administration Thursday, December 1, CISP, 2.5 CTFA (TAX), 2.0 CPEs for CPAs (Tax), 2.0 CFP A review of recent legislation, regulatory developments, cases, and public and private rulings in the estate, gift, generation-skipping tax, fiduciary income tax, and charitable giving areas will be provided. Some of the subjects to be discussed include: Marital Deduction Planning Portability Possible changes in the Estate Tax Laws Valuation Issues Gifts The Availability of Discounts Charitable Planning Post Mortem Planning The Generation-Skipping Tax Asset Protection Insurance Fiduciary Income Tax Life Insurance in a 21 st Century Estate Plan Aired: Thursday, February 4, 2016 Recording Now Available Recording eligible for 2.5 CRSP, 2.5 CTFA (Fin. Plan.) Life insurance products have become increasingly sophisticated and personalized. At the same time, the role of life insurance in estate planning has changed. This briefing will help listeners understand the role of life insurance in current estate plans. Reasons for having Life Insurance Types of Life Insurance and Specially Designed Insurance Products Who Can Be Insured Private Placement Life Insurance Estate Tax Planning with Life Insurance o o Irrevocable Life Insurance Trusts Qualifying the Payment of Premiums for the Annual Exclusion Premium Financing o Split Dollar Insurance o Third-Party Loan Arrangements Uniform Fiduciary Access to Digital Assets Act (UFADAA) and Digital Assets Aired: Thursday, March 3, 2016 Recording Now Available Recording eligible for 2.5 CTFA (FID) The laws on the disposition of tangible and financial assets are well-defined and well-understood. By contrast, there is little uniformity or even agreement about the rights of persons to dispose of digital assets, and grant control over them to others. The current uniform law proposals, and planning options under current law will be reviewed during this program. Uncertain Current Federal and State Legislative Environment Different Approaches of Tech Industries and Estate, Trust, and Financial Planning Professionals Uniform Fiduciary Access to Digital Assets Act Personal Expectations Afterlife and Choices Act Provisions in Wills, Trusts, and Powers of Attorney to Deal with Digital Assets Who Should Attend? Trust Officers Estate Planners Trust Counsel Trust Department Managers Wealth Managers Private Bankers Trust Tax Professionals Financial Planners CTFAs, CPAs, CFPs Registration/Site License Fee PER Briefing Purchased ABA/ICB Member/Service Member: $265 Non-Member: $395 Each registration entitles one registrant a single connection to the Briefing by Internet and/or telephone from one room where an unlimited number of participants can be present. Any transmission, broadcast, retransmission or re-broadcast of this event to additional sites/rooms by any means or recording is a violation of U.S. copyright law and is strictly prohibited. Register Today! Register online at or call BANKERS ( ). Continuing Education Credits? The Institute of Certified Bankers has approved each of these programs for continuing education credits. In addition, these briefings are eligible for CPE credits for CPAs and Certified Financial Planners credits see descriptions for listing of approved credits. American Bankers Association is registered with the National Association of State Boards of Accountancy (NASBA) as a sponsor of continuing professional educational on the National Registry of CPE Sponsors. State boards of accountancy have final authority on the acceptance of individual courses for CPE credit. Complaints regarding registered sponsors may be submitted to the National Registry of CPE Sponsors through its website: learningmarket.org. Questions? Contact Linda Shepard at lshepard@aba.com. Or, call BANKERS ( ).

84 ABA Wealth Management and Trust Online Training Courses When clients choose a bank for trust and wealth management services, the decision ultimately comes down to trust. And solid trust the kind that will take bankers through what may be a multigenerational relationship with clients is based on expertise and performance. ABA s wealth management and trust online training helps bankers develop and deepen those client relationships through a relevant and flexible curriculum. Banks will benefit as well-trained trust professionals attract and retain satisfied clients, providing the information, advice and education clients need. Building on ABA s strong reputation for training, the wealth management and trust online courses set the industry standard. What s New? Content focuses on the needs of diverse clients from corporate executives and high-net-worth families to entrepreneurs and retirees. Shorter, more interactive courses to complement bankers busy schedules and reinforce learning. Interactive examples of how solutions are applied to clients needs. Sample client scenarios give advisors the opportunity to test their understanding Benefits to Banks With added flexibility, banks can structure the training to target the needs of the clients and markets they serve. Well-trained advisors contribute to better team performance and provide future leadership within the bank. Greater client satisfaction brings more business and higher revenues. Features More than 40 self-paced courses delivered via ABA s Learning Management System. Courses cover five broad subjects: Financial Planning, Tax Law and Tax Planning, Fiduciary Activities, Investment Management and Ethics Designed for advisors with at least three years of experience. Courses available for many specialties requiring different levels of trust expertise, including portfolio managers and private bankers. Each course complemented by reference guides, charts and readings. Full support for mobile devices allows on-demand access. Courses can be printed for reference. Courses qualify for CTFA, CISP, CRSP and CSOP continuing education credits. aba.com/wmtcourses

85 ABA Wealth Management and Trust Online Training Courses Estate Planning and Trust Activities Account Acceptance and Termination Basic Characteristics of a Trust Discretionary Distributions Duties and Powers of a Trustee Estate and Guardian Administration Estate Planning to Achieve Client Goals Estate Planning for Charitable Giving Estate Planning for the Marital Deduction Estate Planning Solutions for Business Owners Fiduciary Law A Guide to Ethics in Fiduciary and Trust Activities Minimizing Fiduciary Risk and Litigation Special Needs Trusts Investment Planning Asset Allocation and Portfolio Management Bond Selection and Analysis Economics and Markets Fundamentals of Alternative Investment Products A Guide to Ethics in Investments Investment Policy Investment Products Prudent Portfolio Management Stock Selection and Analysis Tax Law and Tax Planning Fiduciary Income Tax Generation-Skipping Transfer Tax Gift Taxation A Guide to Ethics in Tax Law and Tax Planning How Trusts are Taxed Planning for Estate Tax Understanding Transfer Tax Financial Planning Education Planning Solutions for Minors Estate Planning for IRAs and Qualified Plan Balances Fundamentals of Life Insurance A Guide to Ethics in Financial Planning Income Tax Planning Introduction to IRAs Introduction to Planning for Retirement Assets Managing Life Insurance Policies Types of Insurance Trust Fundamentals Introduction to Estate Planning Introduction to Investment Management Introduction to Trust Administration aba.com/wmtcourses