Federal Criminal Legislation. The Federal Government enacted the Computer Fraud and Abuse Act (CFAA”) in part to criminalize internet theft, data theft, computer hacking, and other forms of internet crime. As written, CFAA criminalizes the unauthorized access to any computer, online service or online account. Unfortunately, to determine who may and may not access a specific account, even with the explicit permission of the account holder, you must read the service or account provider’s Terms of Service contract. As an example, Facebook’s Terms of Service Agreement prohibits anyone from logging into a user’s Facebook account, other than the user themself, even with the permission of the user. Therefore, a family member, friend, or even a fiduciary that logs into a Facebook account, using the password provided to them by the user themself, has violated the Terms of Service contract and is now committing a federal crime under the CFAA. Fortunately, the Department of justice has made it clear that they are not looking to enforce the CFAA when dealing with simple violations of online Terms of Service contracts, unless there are other more criminal factors involved. However, as advisors to our clients, and to fiduciaries such as Power of Attorneys, Executors, and Trustees, can we ethically advise clients to access digital assets and accounts where we know that they will be committing a crime under the CFAA? Further, if our fiduciaries do decide to access such accounts and commit a crime, how will we respond to a challenge from an unhappy beneficiary who is aware of the access and its violation of the CFAA?
B. Federal Privacy Legislation. In addition to the criminalization of unauthorized access of digital assets and online accounts, the Federal Government has also passed the Stored Communications Act (“SCA”) which creates a right to privacy for data and information stored online. Similar in nature to the federal health information privacy act (often referred to as HIPAA), the SCA creates specific guidelines as to whether, and when, providers of electronic communication services and holders of online data can release the information. As you will see below, these protections can create significant hurdles for family members and fiduciaries who attempt to access information stored online with these service providers and content holders.
1) Law Enforcement Agencies may compel the release of the information otherwise protected by the SCA through the use of subpoenas and other legal procedures.
2) Service providers are prohibited from disclosing information, or granting access to accounts, to non-Law Enforcement individuals (family and fiduciaries), unless one of the statutory exemptions are met. While there are exemptions for specific situations such and employment related emails being released to an employer or being disclosed during a lawsuit against a business, the main exemption that we should be aware of and plan with is the “Lawful Consent” exemption found in Code Section 2701(b)(3) of the SCA. This exemption allows a service provider to voluntarily turn over (or grant access to) stored information if the recipient has the lawful consent of the creator of such digital asset to access such information. However, this exception only provides that the service provider MAY turn over the information, but does not require them to. In fact, there are several national cases where service providers have chosen not to disclose the information. In these situations where the recipient actually had lawful consent, the courts indicated that the SCA exemption does not mandate the disclosure of the stored information, and that the courts could not compel the distribution of the information under the SCA even through legal proceedings.
C. State Criminal Legislation. Every state in the United States has its own version of computer and online fraud statutes that it uses to be able to bring state law charges for online theft, fraud, hacking, and other internet and computer crimes. In Florida, we have Florida Statute §§ 815.01-815.07 (“Florida Computer Crimes Act” or “Florida CCA”), enacted in 1979, which provides our state legislation. Typical violations under the Florida CCA are
- unauthorized access of another user’s account
- unauthorized modification, deletion, copying of files, or programs
- unauthorized modification or damage of computer equipment.
However, Florida-based businesses usually prefer to pursue cases under the federal CFAA for relief because the Florida CCA allows plaintiffs to bring the civil action against a hacker only after a criminal conviction is successful.
- State Fiduciary Powers. Given the lawful consent exemption to the SCA that was discussed above, several states have amended their state statutes to provide that fiduciaries in their state shall be deemed to have lawful consent to access online information under the SCA. This is intended to open the door to allow service providers to voluntarily disclose stored content without the fear of having to determine on a case by case basis whether the fiduciary of an account holder has been given lawful consent. Unfortunately, to date, only five states have enacted such laws (Connecticut, Idaho, Oklahoma, Rhode Island and Indiana), and another 18 states have a relevant bill introduced (California, Colorado, Maine, Maryland, Massachusetts, Michigan, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Virginia), with the majority of the pending legislation introduced in the last 2 years. Unfortunately, even the enacted statutes provide little guidance in the form of definitions and procedure, and therefore while certainly a step in the right direction, these enacted and pending statutes have a long way to go to fully fix the access problems.
- Website and Service Provider Contracts. Online service providers mandate that all users agree to the provisions of a Terms of Service Contract (“TOSC’s”) which governs the actions of both the service provider and the user. Unfortunately, the TOSC’s are a take it or leave it situation, and can not be negotiated by the user. Can you imagine if each user could independently negotiate the terms of his or her contract with iTunes or their email service provider? Therefore we are relegated to accepting the often one-sided terms mandated by the service provider. These TOSC’s often restrict who may access a registered account or service to the individual that created the account, thereby eliminating any flexibility for fiduciaries or other authorized people from accessing the account. Likewise, such TOS’s will usually create restrictions on the ability of someone other than the user to reset or obtain password. In general, it’s the restrictions found in these TOCS’s that set up our fiduciaries for failure under the CFA and SCA.