[WorldMaker]

At one point I was considering a Shamir's Secret Sharing based idea with the thought of especially targeting lawyers as a key part of "digital estate planning". The trouble happened that the more I talked off hand with various lawyers about the idea, the more it sounded what I really needed to make was a political lobby first (and that's not something I'd enjoy).

We have a lot of estate laws for arranging physical goods. We have almost no digital asset rights that survive our passing. Most of our accounts are explicitly locked to our lifetimes in Terms of Services agreements (generally, they are between me and only me and the service).

There's likely going to be some big political battles over the next decade or two as folks with big Steam collections or Movies Anywhere accounts or Dropbox file stores pass on and try to pass those digital "assets" to surviving family members.

So my "simple" idea of "I want to build a tool for lawyers to securely write down and file people's passwords in their wills/trusts" became a giant rabbit hole of "securing the will/trust may not be the hard part, making sure those passwords are useful to survivors is a very hard problem that currently everyone is kicking the can on".

[jessriedel]

In most cases, like Steam and Dropbox, those services don't seem to check or particularly care that you are the original account owner. They do two factor authentication, security questions, etc, but that's just trying to make sure you haven't been hacked, and preparing for it would be part of giving someone secure passwords in your will.

[WorldMaker]

The point is that lax enforcement doesn't matter to lawyers when questioning the legal basis for something. If you are going to start encouraging every lawyer to start contemplating adding passwords to wills and trusts, they start to ask a lot of questions if that is something that can even legally be put in a will or entrusted to an estate.

We don't have good legal protections for that at all. Consider that some Terms of Service agreements, sharing a password at all, no matter the reason, is itself a breach of Terms of Service. That most services may not enforce such ToS clauses today doesn't imply that they won't start enforcing them tomorrow.

(Multi-factor is another land mine mess in digital asset rights. We barely understand how biometric locks should affect things like privacy laws, let alone has anyone really started talking about how you deal with a dead relative's thumbprint or "face ID" in their absence. Passwords are at least physically transferable, a lot of MFA, especially biometrics, is not.)

[jessriedel]

Did a lawyer actually tell you they wouldn't give a password to an heir?

[WorldMaker]

They told me that they wouldn't pay for a service to securely provide passwords to heirs without the legal issues addressed first. There's a difference between "my client intended to include this bit of secret information to their heir and what the heir chooses to do with it is their responsibility" and "I'm going to encourage my client to work with me to sign up and pay for this service in order to entrust their passwords to future heirs" in terms of good old fashioned CYA [Cover Your Rear].

Which is a big part of why it needs to be a political lobby or working group: lawyers don't think anything about the ad hoc cases ("give this password to my heirs") because it is isn't their responsibility at that point other than storage and it isn't distinct from the rest of wills/trust documents. Then there is the problem that it isn't yet common enough for them to abstract it into a "class" and/or yet think to ask every client of theirs for passwords for continuity of digital estates/digital asset planning. As soon as they do start to consider the repercussions of the latter is when they do start to get antsy about their responsibilities (is it legal for every service, the answer to which is currently "no" [the discussion above], and then increasingly complicated follow ups such as can you "split an account among multiple heirs" and "what's the retail value if it needs to be auctioned" and so on and so forth). Lawyers at that point want the comfort of laws to back them up in any such responsibilities, at which time it looks necessary to start a political lobby to build digital assets rights into laws.