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Court Order to Compel Apple to Release iCloud Account to Widow

Decedent's iCloud account contains sentimental information s lawyer208/03/17
You have a problem. Arizona passed the Revised Uniform Fidu dingbat08/03/17
Yeah, I'm digging through that now. From what I can tell, un lawyer208/03/17
stop right there. photos can be considered communications ( dingbat08/03/17
We'll see just how much they want to be dycks about it. I'm lawyer208/03/17
word of advice: don't try to fck with Apple's legal departme dingbat08/03/17
Yea, I think you're right. After reading further, specif lawyer208/03/17
If the TOS attempts to divest a beneficiary of her rights to jeffm08/03/17
it's permissible because Apple can afford to drag the case o dingbat08/04/17
I understand about them being able to drag it out if they ch lawyer208/04/17
No, because of the adoption of UFADA as dingbat said. Sure, onehell08/04/17
"the relationship between the cloud provider and the owner i jeffm08/04/17
the law hasn't caught up to modern technology, and where it dingbat08/05/17
Yup, particularly in this case the ufada was drafted with a onehell08/05/17
icloud TOS says that unless otherwise provided by law, there onehell08/03/17
Thank you. I think we're going to proceed with an informal p lawyer208/08/17
also, please let us know how it goes. This is important inf dingbat08/04/17
lawyer2 (Aug 3, 2017 - 1:25 pm)

Decedent's iCloud account contains sentimental information surviving spouse would like access to. Password reset/recovery is no longer an option (account is locked)and Apple's requiring a Court Order to release account to spouse.
Of course I cannot get a court order without a CV number (here in AZ). My question is, what, in your opinion, would be the path of least resistance to get this Court Order? Injunctive Relief, Declaratory Judgment? Probate is not an option because it creates bigger problems than it solves with the value of the estate.

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dingbat (Aug 3, 2017 - 2:03 pm)

You have a problem. Arizona passed the Revised Uniform Fiduciary Access to Digital Accounts Act. That can grant a fiduciary access to digital property, but not digital communication, unless the decedent specifically consented thereto.

If you don't have a specific release, well, um, good luck

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lawyer2 (Aug 3, 2017 - 2:14 pm)

Yeah, I'm digging through that now. From what I can tell, unless the decedent granted specific access in a will, the custodian's (Apple) Terms of Service controls. We're not looking for communications though, just digital property, Photos etc.

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dingbat (Aug 3, 2017 - 3:20 pm)

stop right there. photos can be considered communications (instagram). Digital properties vary from a media library (itunes purchases), to digital goods (e.g. various games), to IP. Different types of digital property could have different rules. But yeah, start with the terms of service.

(alternatively, non-lawyer answer, find a way to get unauthorized access to the account; do you have access to the client's personal email? If two-factor authentication is chosen, it might still be possible to access the account; google is your friend)

Damn, maybe I should have paid attention at that digital CLE course a few months back?

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lawyer2 (Aug 3, 2017 - 3:33 pm)

We'll see just how much they want to be dycks about it. I'm drafting a letter to Apple's legal department now stating:

Under A.R.S. 14-13108 "a custodian shall disclose to the personal representative of the estate of a deceased user . . . digital assets . . . if the representative gives the custodian all of the following:

1. A written request for disclosure in physical or electronic form.
2. A certified copy of the death certificate of the user.
3. A certified copy of the letters testamentary, a small-estate affidavit or a court order.

Surviving Spouse has the small estate affidavit and an open case with them so they know what's going on. I guess if they push back we'll follow-up by saying if they force us to get a court order they'll be responsible for costs incurred.

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dingbat (Aug 3, 2017 - 3:53 pm)

word of advice: don't try to fck with Apple's legal department, they DGAF. You can't intimidate a company whose legal budget is greater than the GDP of a third of all countries on earth.

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lawyer2 (Aug 3, 2017 - 4:06 pm)

Yea, I think you're right.

After reading further, specifically, 14-13105(C) Terms-of-service agreement, it states that "[a] fiduciary's or designated recipient's access to digital assets may be modified or eliminated by a user, by federal law or by a terms-of-service agreement if the user has not provided direction under section 14-13104."

I think this puts me back at square one. You think it would be worth a try?

Alternatively, it would seem the spouse is entitled to the "property" under Arizona Community property laws, but I'm not sure what needs to be filed.

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jeffm (Aug 3, 2017 - 11:07 pm)

If the TOS attempts to divest a beneficiary of her rights to the decedent's estate, I would wonder how that could be permissible, if not unconscionable. Nevertheless, it sounds like you are providing the proof of authority they want.

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dingbat (Aug 4, 2017 - 12:48 pm)

it's permissible because Apple can afford to drag the case out until the plaintiff gives up or runs out of money

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lawyer2 (Aug 4, 2017 - 12:56 pm)

I understand about them being able to drag it out if they chose, but isn't "unless otherwise provided by law" the operative phrase. Wouldn't state law, specifically community property, say otherwise?

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onehell (Aug 4, 2017 - 2:27 pm)

No, because of the adoption of UFADA as dingbat said. Sure, the digital assets themselves may be community property, and there'd be no problem if those assets were just sitting on a hard drive. But ownership is not the issue, these assets are stored in the cloud and the relationship between the cloud provider and the owner is a contractual one, and the contract gives the cloud provider the right to destroy the data after the owner dies, regardless of who owns it. In the absence of contrary law, that contract is enforceable. Not only is there not contrary law, there is law specifically endorsing the enforceability of such agreements.

If OP can get a court order before that data is destroyed, that may alter things. But unless and until he does, the TOS is probably enforceable.

That said, this is why I think he should get an informal appointment of personal representative. These are very sympathetic facts and the judge is going to WANT to rule for OP. He's just got to get it in front of the judge and try to find some credible argument, which is why OP was absolutely right (I think) that he should do what he can to get a case number.

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jeffm (Aug 4, 2017 - 10:32 pm)

"the relationship between the cloud provider and the owner is a contractual one, and the contract gives the cloud provider the right to destroy the data after the owner dies, regardless of who owns it. In the absence of contrary law, that contract is enforceable."

I am not saying it isn't so, but it makes me wonder whether the contractual agreement with your 401k account manager could lawfully allow the manager to plunder your account on your death.

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dingbat (Aug 5, 2017 - 10:01 am)

the law hasn't caught up to modern technology, and where it has, it's being written with sufficient input from technology companies in an era where our government representatives are not looking out for our best interests.


That being said, it's not a bad analogy, but banking laws prohibit that kind of contract, whereas IT/IP laws do not

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onehell (Aug 5, 2017 - 1:09 pm)

Yup, particularly in this case the ufada was drafted with a lot of industry pressure. They want to put whatever they want tin the TOS. even storage locker owners have more duties to deceased tenants than cloud providers apparently do under this uniform act. It would basically be as if the locker landlord could just destroy everything in the locker unless the decedent had given someone else a key. But no, even for storage lockers most states require all kinds of notice and waiting periods and auction procedures. Digital stuff, OTOH, is essentially presumed worthless in the event of no action in advance by decedent.

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onehell (Aug 3, 2017 - 5:40 pm)

icloud TOS says that unless otherwise provided by law, there are no survivorship rights and they can completely destroy the account and all it's data if they receive a death certificate, so sending them letters before getting a court order might make things worse.

That said, why so afraid of probate? Informal appointment of personal representative can be requested by the spouse, a close relative or heir. The size of the estate doesn't appear to factor into it. See ARS 14-3301. Looks like they don't kick it to formal proceedings unless someone fights it, and if someone is likely to fight it, that's something she should want to get resolved anyway.

Apple could still push back, because ARS 14-13107 appears to say you still need some record of the user's consent even with an order, but at least with an informal appointment you have your case number. Plus, the requirement of user consent includes "any other record," not just formal directions or powers of attorney, so maybe she can dig something up from him.

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lawyer2 (Aug 8, 2017 - 2:43 pm)

Thank you. I think we're going to proceed with an informal probate proceeding then seek an order.

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dingbat (Aug 4, 2017 - 10:42 am)

also, please let us know how it goes. This is important information to share

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