Amended in Assembly March 23, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 691


Introduced by Assembly Member Calderon

(Coauthors: Assembly Members Chávez, Chu, Dababneh, and Gonzalez)

February 25, 2015


An act to add Part 20 (commencing with Section 870) to Division 2 of the Probate Code, relating to estates.

LEGISLATIVE COUNSEL’S DIGEST

AB 691, as amended, Calderon. The Privacy Expectation Afterlife and Choices Act (PEAC).

Existing law provides for the disposition of a testator’s property by will. Existing law also provides for the disposition of that portion of a decedent’s estate not disposed of by will. Existing law provides that the decedent’s property, including property devised by a will, is generally subject to probate administration, except as specified.

This bill would establish the Privacy Expectation Afterlife and Choices Act, which would require a probate court to order an electronic communication service or remote computing service provider, as defined, to disclose to the executor or administrator of the estate a record or other information pertaining to the deceased user, but not the contents of communications or stored contents. The bill would require the probate court to make specified findings in order to require this disclosure, including that the executor or administrator demonstrates a good faith belief that account records are relevant to resolve issues regarding fiscal assets of the estate. The bill would exempt the provider from disclosure if the deceased user expressed a different intent through either deletion of the records or contents during the user’s lifetime, or affirmatively indicating, through a setting within the product or service, how the user’s records or the content of communications can be treated after a set period of inactivity or other event and would exempt the provider from civil liability for compliance in good faith with a court order issued pursuant to this act.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Part 20 (commencing with Section 870) is added
2to Division 2 of the Probate Code, to read:

3 

4PART 20.  Privacy Expectation Afterlife and
5Choices

6

 

7

870.  

This part may be known, and may be cited, as the Privacy
8Expectation Afterlife and Choices Act.

9

871.  

(a) A probate court that has jurisdiction of the estate of
10the deceased user shall order a provider to disclose to the executor
11or administrator of the estate a record or other information
12pertaining to the deceased user, but not the contents of
13communications or stored contents, if the court makes all of the
14following findings of facts:

15(1) The user is deceased.

16(2) The deceased user was the subscriber to or customer of the
17provider.

18(3) The account belonging to the deceased user has been
19identified with specificity, including a unique identifier assigned
20by the provider.

21(4) There are no other authorized users or owners of the
22deceased user’s account.

23(5) Disclosure is not in violation of another applicable law.

24(6) The request for disclosure is narrowly tailored to effect the
25purpose of the administration of the estate.

26(7) The executor or administrator demonstrates a good faith
27belief that account records are relevant to resolve issues regarding
28fiscal assets of the estate.

P3    1(8) The request seeks information spanning no more than a year
2prior to the date of death.

3(9) The request is not in conflict with the deceased user’s will
4or other expression of the deceased user’s intent.

5(b) Except as provided in subdivision (c), a provider shall
6disclose to the executor or administrator of the estate the contents
7of the deceased user’s account, to the extent reasonably available,
8only if the executor or administrator gives the provider all of the
9following:

10(1) A written request for the contents ofbegin insert theend insert deceased user’s
11account.

12(2) A copy of the death certificate of the deceased user.

13(3) An order of the probate court with jurisdiction over the estate
14of the deceased that includes all of the findings required in
15subdivision (a).

16(4) An order that the estate shall first indemnify the provider
17from all liability in complying with the order.

18(c) If an order is served on a provider pursuant to this section,
19the provider may make a motion to quash or modify the order. The
20court shall grant the motion if compliance with the order would
21cause an undue burden on the provider or if any of the requirements
22of subdivision (b) are not met.

23

872.  

A provider shall not be compelled to disclose a record or
24the contents of communications if any of the following apply:

25(a) The deceased user expressed a different intent through either
26deletion of the records or contents during the user’s lifetime, or
27affirmatively indicating, through a setting within the product or
28service, how the user’s records or the content of communications
29can be treated after a set period of inactivity or other event.

30(b) The provider is aware of any indication of lawful access to
31the account after the date of the deceased user’s death or that the
32account is not that of the deceased user.

33(c) Disclosure violates the lawbegin insert, including, but not limited to,
34copyright lawend insert
.

35

873.  

(a) begin deleteNothing in this part shall be interpreted to confer upon
36the executor or administrator of the decedent’s estate greater rights
37in the contents than those enjoyed by the deceased user. end delete
begin insertDisclosure
38of the contents of the deceased user’s account to the executor or
39administrator of the estate shall be subject to the same license,
P4    1restrictions, terms of service, and legal obligations, including
2copyright law, that applied to the deceased user.end insert

3(b) Nothing in this part shall require a requesting party to assume
4control of a deceased user’s account.

5

874.  

A provider shall not be held liable for compliance in good
6faith with a court order issued pursuant to this part.

7

875.  

As used in this part, the following definitions shall apply:

8(a) “Contents” means information concerning the substance,
9purport, or meaning of communications and includes the subject
10line of the communication.

11(b) “Electronic communication” means a transfer of signs,
12signals, writing, images, sounds, data, or intelligence of any nature
13that is transmitted, in whole or in part, by a wire, radio,
14electromagnetic, or photooptical system that affects interstate or
15foreign commerce. “Electronic communication” does not include
16any of the following:

17(1) Wire or oral communication.

18(2) Communication made through a tone-only paging device.

19(3) Communication from a tracking device.

20(4) Electronic funds transfer information stored by a financial
21institution in a communication system used for the electronic
22storage and transfer of funds.

23(c) “Electronic communication service” means a service that
24provides to users the ability to send or receive wire or electronic
25communication.

26(d) “Electronic communications system” means a wire, radio,
27electromagnetic, photooptical, or photoelectronic facility for the
28transmission of wire or electronic communications and any
29computer facilities or related electronic equipment for the electronic
30storage of those communications.

31(e) “Provider” means an electronic communication service or
32remote computing service.

33(f) “Remote computing service” means providingbegin delete to the public
34ofend delete
computer storage or processing servicesbegin insert to the publicend insert by means
35of an electronic communications system.

36(g) “User” means a person or entity who uses an electronic
37communicationbegin delete servicesend deletebegin insert serviceend insert and is duly authorized by the
38provider to engage in that use.



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