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Keeping careful records of the usernames and passwords for your online accounts and sharing them with a trusted family member or agent may seem like the start of a responsible estate plan. But you need to be aware of the risks for those you empower with the information.
Even with your permission, fiduciaries (executors, trustees, conservators), agents and family members who manage assets as part of your estate plan could be committing a federal crime by accessing your online account with your password.
That’s because most terms of service agreements governing websites or online accounts specify that passwords not be shared and that third parties not be allowed to access a user’s account. So even if you provide the person with the log-in information for your account, he or she could still be violating the terms of service by using it to access your account.
Violating a computer owner’s term of service agreement violates federal and state anti-hacking laws, called Computer Fraud and Abuse Acts (CFAAs). These laws both criminalize and provide civil penalties for unauthorized access to computers and data.
While most related court decisions involve cases where the issue went beyond a simple violation of a terms of service agreement and involved additional unethical or bad behavior, there are some instances where a simple violation of an agreement was found to violate the CFAA, making it a federal crime.
That means relying on password sharing is risky both for family members and fiduciaries. Until the federal courts sort out their views on the issue, the possibility of civil or criminal prosecution remains.
Contact one of our seasoned attorneys to discuss your estate planning needs.