Dallas Bar Association
HEADNOTES
Focus Science & Technology/Intellectual Property Law
February 2017 Volume 42 Number 2
Ensuring Equal Access to All – Campaign Exceeds $1.1 Million BY ALICIA HERNANDEZ
There but for the grace of God go I. This is a phrase we hear people say all the time, and it encapsulates the uncertainty of our world—a world where we can work hard, lead a healthy life, try to do all the right things, but still hard times befall us. Many would be hard pressed to say that quote never passed their minds when working with someone less fortunate, who lost a job, whose spouse left them, or someone struggling with health problems or addiction. The list goes on. This phrase was at the forefront of one volunteer attorney’s mind when she represented “Maria” years ago in her child custody case. Maria was a good mother. She loved her kids, and she did her best to take care of them. Even though her lifestyle was very limited, she had a roof over her children’s heads, food on the table, and her children were good students. Maria seemed to have the deck stacked against her from the beginning. She was poor. She was severely abused throughout her life by her father, her brothers, and her boyfriends. And, although she had graduated from high school and had a job, the years of abuse had taken its toll on her abilities. She did her best, but it was so hard to get ahead. Maria’s attorney represented her well, preparing fully for trial, and preparing Maria for the worst. Maria, in turn, prepared her children for the worst—the possibility of the family being split up. Consistent with Maria’s life, the deck seemed stacked against Maria in court, but prayers were answered and hard work paid off, and Maria and her children got to stay together. Maria’s volunteer attorney, who wishes to remain anonymous, experienced what many volunteers do when
Focus
Lisa Blue
Chris Hamilton
doing something for others. She felt she received more from helping Maria than what she had given. “My experience with Maria helped me practice my trial skills, which was a great opportunity. What I didn’t expect was that it also helped drive home how lucky I am and how grateful I should be for all I have,” she says. “Maria was the first client who really made me think ‘there but for the grace of God, go I.’” “Maria was born into a family of abusers. I was born into a family of loving, caring people. Maria was taken advantage of by those who should have protected her. My family did everything they could to protect me. Very few, and certainly no one in her family, tried to help Maria. I have been surrounded by supportive and helpful friends and family. Why was I so lucky, and why did Maria have such disadvantages set upon her young, innocent life.” Many of you will see yourselves in Maria—someone who struggled, persisted, and are where they are today despite the obstacles. Some will see yourselves in our volunteer—loving parents, stability, and opportunities.
Some will feel they land somewhere in between— challenges and opportunities—but carrying on just like Maria. “I am so thankful and really honored that I was able to do something positive for Maria. Her case was a learning experience both personally and professionally,” said our volunteer. “DVAP is an opportunity we should be very, very proud of,” said Lisa Blue. “It is an opportunity for those of us who have been given the chance or have prevailed despite our circumstances, to help others rise up. It is an opportunity to be touched and to touch the life of another. It is the opportunity to grow professionally by mentoring others, learning about new areas of the law, and getting valuable experience. It is the opportunity to give back through legal service in a way only lawyers can. I am proud to be a part of it.” “Pro bono work is some of the most important work that we do,” added Chris Hamilton. “It is an opportunity to give back, help those less fortunate, and to ensure access to justice for all. As attorneys, pro bono work through the Dallas Volunteer Attorney Program should be one of our top priorities.” Lisa Blue, of Baron & Blue, and Chris Hamilton, of Standly Hamilton, LLP, are long-time supporters of Equal Access to Justice and the Dallas Volunteer Attorney Program. Because of contributions from donors like Lisa and Chris, the Equal Access to Justice Campaign has surpassed $1.1 million. These contributions are what allows DVAP to continue to assist thousands of clients every year—and HN provide opportunities for all.
Science & Technology/Intellectual Property Law
Who Gets my iTunes After I Die? BY PEGGY H. KEENE
In this day and age, people do not give second thought to the idea that drones are delivering parcels, voice commands can brew coffee, and songs can be streamed anywhere on demand. With technology innovating at such a rapid pace, it is hardly surprising that the law has barely kept up. Today’s average American has more than 20 active user accounts online and can acquire massive amounts of “digital assets” at an alarming rate. The term “digital assets” has come to refer to all of the digital content a user has amassed via the Internet. While the term is broad and encompasses a wide variety of content, it, in essence, refers to the vibrant patchwork of online content that users collect and manipulate every day to combine into an overall representation of their online identity. But what happens to these digital assets when we die? Is there some way we can ensure that these digital assets pass on to family members, or in some cases, is there some way we can ensure that these digital assets do not pass on to loved ones?
Traditionally, estate law has handled the distribution of one’s assets upon death. As such, allocation of one’s property upon death has been governed at the state level. By contrast, digital goods and services, by their inherent interstate nature, have generally been controlled by federal statutes. Specifically, the Stored Communications Act (SCA), a subsection of the Electronic Communications Privacy Act (ECPA) of 1986, has provided the most guidance. The SCA is a popular statute because it grants service providers—or “data custodians” (as defined by the SCA)—the right to refuse requests for disclosure unless the requesting party can prove that a specific exception of the SCA warrants such disclosure. In turn, the most commonly used exception, the “lawful consent” exception, has become quite notorious for its widespread use (almost to the point of abuse), and most practitioners joke that what qualifies as “lawful consent” varies from state to state and from provider to provider. But this all changed in 2016. Last year, at least 20 states passed the Revised Uniform
Fiduciary Access to Digital Assets Act (RUFADAA) or some form of it, which will provide legal guidance on how digital assets should be distributed upon death. Under RUFADAA, any fiduciary, such as a client’s executor, has the authority to determine how digital property and assets should be distributed or managed upon death. RUFADAA also grants the fiduciary access to user accounts, emails, social media, etc., if consent is explicitly conferred via will, power of attorney, trust, or through any specially-dedicated online tools or procedures as provided for by the online service provider. While these dedicated tools are relatively uncommon right now, the trend is catching on. For example, in response to the growing need, Google instituted an “Inactive Account Manager” setting in 2013, which allows a user to name another person as the recipient of their Google assets after a set amount of inactivity (e.g., three, six, nine, or twelve months). This dedicated tool also gives users the alternative option
to request that Google simply delete all of their digital assets/account after a pre-determined duration of inactive time instead of passing it on to another person. In absence of RUFADAA, the ownership of digital assets is still generally controlled by end-user licensing agreements. As such, movies and music we “purchase” and amass in our iTunes library are still generally considered to be only licensed to us and, as such, upon our death, the music license will simply expire, instead of becoming transferrable upon death. As RUFADAA is still in its infant stages and some states have yet to adopt it, the overall impact of the legislation still remains to be seen. While we can expect that all states will adopt RUFADAA or some form of it by the end of 2017, only time will tell how strongly it will impact the ownership of one’s digital goods. HN Peggy H. Keene is the founder of Keene Law Firm, P.C. She can be reached at peggy@keeneiplaw.net.
Inside 8 DBA Board Elects Chair and Vice Chair 10 Inaugural of Rob Crain 13 Mitigating Legal & Business Risks for Cyber Intrusions
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