Probate & Trust Law Section Conference Manual ... - Minnesota CLE

the Uniform Trust Code, the Uniform Guardianship and Protective
Proceedings Act, and the Uniform Power of Attorney Act) that will vest
fiduciaries with at least the authority to manage and distribute digital
assets, copy or delete digital assets, and access digital assets.
ii. The Committee has met twice and is progressing on a draft.
iii. The draft will need to be approved by the ULC before adopted.
iv. It has been noted by the Committee that some state legislatures/bar
associations are eagerly awaiting the drafted approved by the ULC before
their state specifically considers or enacts digital asset legislation.
VI.
Fiduciary Liability for Unauthorized Access
a. Before accessing the client’s virtual assets, consider who has the right to view and
access the data.
b. If the client is or may be involved in a lawsuit, accessing data may waive
applicable privileges or destroy potential evidence.
i. Consultation with litigation counsel is imperative.
ii. Simply turning on a computer or smartphone may erase data that may be
helpful in a forensic examination.
c. Federal and state laws criminalize certain types of unauthorized access or damage
to computers or data.
d. All fifty states have criminal laws prohibiting unauthorized access to electronic
data.
e. See Minn. Stat. § 609.87, § 609.89, § 609.891
i. Minn. Stat. § 609.87 defines authorization as “with the permission of the
owner of the computer, computer system, computer network, computer
software, or other property.”
1. If the terms of service of a computer network do not permit the
user’s fiduciaries to access the user’s account, then the fiduciary is
not authorized under Minnesota law to access that computer
network.
ii. Minn. Stat. § 609.89: Computer Theft. Whoever intentionally and
without authorization or claim of right accesses or causes to be accessed
any computer network (defined as “the interconnection of a
communication system with a computer through a remote terminal, or
with two or more interconnected computers or computer systems, and
includes private and public telecommunications networks”) or any part
thereof for the purpose of obtaining services or property is subject to
criminal penalties of up to 90 days in prison and/or a $1,000 fine (if the
loss involved is less than $500).
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