- September 19, 2017
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NetChoice releases “white paper” encouraging lawyers and estate planners to avoid the practice of recommending clients share passwords as a way to protect their online accounts and other digital assets
Professional estate planners risk civil liability and violation of the Computer Fraud and Abuse Act (CFAA) for advising clients on improper use of passwords
Boston, Ma, September 14, 2017. Directive Communications System (DCS) today announced that NetChoice, the public policy advocacy organization that promotes internet innovation and online commerce today released a new white paper entitled “Digital Asset Planning. Password Sharing and The Risk of Liability.”
The white paper outlines the challenges of planning for digital estates and the professional consequences to estate planners—including the risk of liability and criminal punishment — that could arise when advising clients on the improper use of passwords to protect their digital assets and online accounts.
Since 2005, the percentage of American adults who have a social media account has increased from 5% to 69%. On average, internet users have 7 social media accounts (up from 3 in 2012). In addition to social media, individuals can have other digital assets that may accumulate in their lifetime such as emails, cyber currency like Bitcoin™ domain names, photos, etc. According to a 2015 Dashlane™ study, the average US web user has around 130 online accounts and expects that number should increase to over 200 online accounts by 2020.
As Gerry Beyer, a Texas Tech University School of Law professor notes in the whitepaper, “..as more and more people invest more information about their activities, health and collective experiences into digital media, the legacies of their digital lives grow increasingly important.”
Today there are currently 2,566 internet service providers in the US and more than 1 billion websites worldwide. However, online service policies, which govern the contractual relationship between the provider of the service and its user, differ across service providers and websites. As a result, professional estate planners and heirs can face burdensome, time consuming and emotionally straining endeavor in obtaining important financial and irreplaceable family assets.
While many states (37) including those that have adopted a version of Revised Uniform Fiduciary Access to Digital Assets (RUFADAA) or the Uniform Fiduciary Access to Digital Assets (UFADAA) have older, inadequate laws that do not properly address the management and distribution digital assets in ways similar to traditional estate planning.
Faced with this rapid increase in digital assets, numerous professional estate planners have an adopted a well intentioned, but misguided approach of advising clients to share their passwords with their spouses or likely heirs. By doing so, these professionals run the risk of breaking the law. Furthermore, their recommendations to clients to keep their passwords and account information in a safe location or take other precautionary measures are unlikely to save their clients or themselves from federal or state prosecution under The Computer Fraud and Abuse Act.
“Professional estate planners and clients should seek lawful, effective, and secure ways to protect their digital assets that don’t require account or password sharing,” said Carl M. Szabo, NetChoice Senior Policy Counsel.
“We found several companies providing estate management solutions but only one, DCS did not require account passwords,” said Szabo. “This no password solution can help estate planners avoid violating federal and state laws and website privacy policies and Terms of Service.”
The white paper covers:
- Why Digital Asset Planning is essential
- The impact of The Computer Fraud and Abuse Act (CFAA) on password sharing
- A summary of recent precedent setting circuit court rulings that have held non-compliance with TOSA violates the CFAA and liability under other computer laws
- Why password sharing is ineffective and insecure
- Emerging Digital Asset Management Solutions
- Overview of digital assets protocol among 26 of the Internets leading service providers
“We are thrilled to be working with lawyers and estate planners providing a simple secure service that places all the information within their easy reach to collect, organize and maintain a client’s digital assets, online accounts and final account directives without need for passwords,” said Lee Poskanzer, founder and CEO of Directive Communications System (DCS). “ In addition to providing protection from violating federal or state CFAA laws, our no password solution provides the added benefit of minimizing ID theft and fraud.”
The newly released white paper co-authored by Carl M. Szabo and Jacklyn Kurin of NetChoice can be downloaded here .
NetChoice is a public policy advocacy organization that promotes Internet innovation and communication and fights threats to online commerce at state, federal and international levels. The Washington, DC-based group protects internet commerce-driven competition and battles rules that hinder consumer choice and hurt small businesses. For more information, see www.netchoice.org.
About Directive Communication Systems
Directive Communication System (DCS) is the market-leading guardian of digital assets. We employ bank-grade security and an intuitive system to simplify the complex logistical and emotional process of digital estate planning for greater peace of mind. We serve estate professionals, individuals planning their estates, loved ones left behind, fiduciaries and website owners. Our DCS platform empowers others with efficient, tailored digital estate-management services, while clearly outlining wishes for digital assets and online accounts, handling cash-value, intellectual property and sentimental accounts without the use of passwords. DCS is the only digital estate management solution to exceed requirements of federal and state laws and website privacy policies and Terms of Service. At DCS we shield your digital legacy and heirs with visionary tools for the 21st century – safe, secure, effective, private—and easy to use. For more information see, http://www.directivecommunications.com.
Carl M. Szabo
Directive Communications System