Amended in Assembly April 14, 2015

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 wouldbegin delete requireend deletebegin insert authorizeend insert 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 thebegin insert account of theend insert deceasedbegin delete user, but not the contents of communications or stored contents.end deletebegin insert userend insertbegin insert.end insert 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 thatbegin delete account records areend deletebegin insert the information requested isend insert relevant to resolve issues regardingbegin delete fiscalend delete assets of the estate.begin insert The bill would additionally require the court to find that the decedent expressed consent to the disclosure of the contents of communications or stored contents, as specified, in order to require the disclosure of those documents.end insert The bill would exempt the provider from disclosure if the deceased user expressedbegin delete a different intent throughend deletebegin insert an intent to disallow disclosure byend insert eitherbegin delete deletion ofend deletebegin insert deletingend insert 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 otherbegin delete event andend deletebegin insert event. The billend insert wouldbegin insert alsoend insert 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 userbegin delete shallend deletebegin insert mayend insert order a provider to disclose to the
11executor or administrator of the estate a record or other information
12pertaining to thebegin insert account of theend insert deceased user, but not the contents
13of communications or stored contents, if the court makes all of the
14following findings of factsbegin insert based upon a sworn declaration of the
15 personal representative or other admissible evidenceend insert
:

16(1) The user is deceased.

17(2) The deceased user was the subscriber to or customer of the
18provider.

19(3) The account belonging to the deceased user has been
20identified with specificity, including a unique identifier assigned
21by the provider.

P3    1(4) There are no other authorized users or owners of the
2deceased user’s account.

3(5) Disclosure is not in violation of another applicable law.

4(6) The request for disclosure is narrowly tailored tobegin delete effectend delete
5begin insert effectuateend insert the purpose ofbegin delete the administration ofend deletebegin insert administeringend insert the
6estate.

7(7) The executor or administrator demonstrates a good faith
8belief thatbegin delete account records areend deletebegin insert the information requested isend insert relevant
9to resolve issues regardingbegin delete fiscalend delete assets of the estate.

10(8) The request seeks information spanning no more thanbegin delete a yearend delete
11begin insert 18 monthsend insert prior to the date of death.

12(9) The request is not in conflict with the deceased user’s will
13or other expression of the deceased user’s intentbegin insert regarding access
14to or disposition of information contained in or regarding the
15user’s accountend insert
.

begin insert

16(b) A probate court that has jurisdiction of the estate of the
17deceased user may order a provider to disclose to the executor or
18administrator of the estate the contents of communications or
19stored contents, if the court makes all of the following findings of
20facts based upon a sworn declaration of the personal representative
21or other admissible evidence:

end insert
begin insert

22(1) The will of the decedent, a setting within the product or
23service regarding how the user’s contents can be treated after a
24set period of inactivity, or other provision or event signifies the
25decedent’s express consent to the disclosure of the requested
26contents.

end insert
begin insert

27(2) The findings required by paragraphs (1) to (8), inclusive,
28of subdivision (a).

end insert
begin delete

29(b)

end delete

30begin insert(c)end insert Except as provided in subdivisionbegin delete (c)end deletebegin insert (d)end insert, a provider shall
31disclose to the executor or administrator of the estate the contents
32of the deceased user’s account, to the extent reasonably available,
33only if the executor or administrator gives the provider all of the
34following:

35(1) A written request for the contents of the deceased user’s
36account.

37(2) A copy of the death certificate of the deceased user.

38(3) An order of the probate court with jurisdiction over the estate
39of the deceased that includes all of the findings required in
40subdivisionbegin delete (a)end deletebegin insert (b)end insert.

P4    1(4) An order that the estate shall first indemnify the provider
2frombegin insert any andend insert all liability in complying with the order.

begin delete

3(c) If an order is served on a provider

end delete

4begin insert(d)end insertbegin insertend insertbegin insertA provider served with an order compelling disclosure of
5subscriber records or contentsend insert
pursuant to this sectionbegin delete, the providerend delete
6 may make a motion to quash or modify the orderbegin insert within a
7reasonable time after receiving the orderend insert
. The court shallbegin delete grant
8the motion if compliance with the order would cause an undue
9burden on the provider or if any of the requirements of subdivision
10(b) are not met.end delete
begin insert do any of the following:end insert

begin insert

11(1) Modify the order to the extent that the court finds that
12compliance with the order would cause an undue burden on the
13provider, or quash the order if the court finds that the order cannot
14be modified so as to avoid the undue burden.

end insert
begin insert

15(2)  Quash the order if any of the applicable requirements of
16subdivision (a) or (b) are not met.

end insert
begin insert

17(3) Quash the order if the court finds, based upon evidence
18submitted by the provider or any other person, that any of the
19circumstances set forth in Section 872 apply.

end insert
20

872.  

A provider shall not be compelled to disclose a record or
21the contents of communications if any of the following apply:

22(a) The deceased user expressedbegin delete a different intentend deletebegin insert an intent to
23disallow disclosureend insert
through either deletion of the records or
24contents during the user’s lifetime, orbegin delete affirmatively indicatingend deletebegin insert an
25affirmative indicationend insert
, through a setting within the product or
26service,begin insert ofend insert how the user’s records or the content of communications
27can be treated after a set period of inactivity or other event.

28(b) The provider is aware of any indication of lawful access to
29the account after the date of the deceased user’s death or that the
30account is not that of the deceased user.

31(c) Disclosure begin delete violates theend delete begin insert would violate other applicableend insert law,
32including, but not limited to,begin insert electronic communications privacy
33provisions orend insert
copyright law.

34

873.  

(a) Disclosure of the contents of the deceased user’s
35account to the executor or administrator of the estate shall be
36subject to the same license, restrictions, terms of service, and legal
37obligations, including copyright law, that applied to the deceased
38user.

39(b) Nothing in this part shallbegin insert be construed toend insert require a requesting
40party to assume control of a deceased user’s account.

P5    1

874.  

A provider shall not be held liable for compliance in good
2faith with a court order issued pursuant to this part.

3

875.  

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

4(a) “Contents” means information concerning the substance,
5purport, or meaning of communications and includes the subject
6line of the communication.

7(b) “Electronic communication” means a transfer of signs,
8signals, writing, images, sounds, data, or intelligence of any nature
9that is transmitted, in whole or in part, by a wire, radio,
10electromagnetic, or photooptical system that affects interstate or
11foreign commerce. “Electronic communication” does not include
12any of the following:

13(1) Wire or oral communication.

14(2) Communication made through a tone-only paging device.

15(3) Communication from a tracking device.

16(4) Electronic funds transfer information stored by a financial
17institution in a communication system used for the electronic
18storage and transfer of funds.

19(c) “Electronic communication service” means a service that
20provides to users the ability to send or receive wire or electronic
21communication.

22(d) “Electronic communications system” means a wire, radio,
23electromagnetic, photooptical, or photoelectronic facility for the
24transmission of wire or electronic communications and any
25computer facilities or related electronic equipment for the electronic
26storage of those communications.

27(e) “Provider” means an electronic communication service or
28remote computing service.

begin insert

29(f) “Record” means a record regarding a communication sent
30or received by a subscriber or user of an electronic
31communications service or remote computing service, including,
32but not limited to, account logs that record account usage, cell-site
33data for mobile telecommunications calls, and online addresses
34of other individuals with whom the account holder has
35communicated.

end insert
begin delete

36(f)

end delete

37begin insert(g)end insert “Remote computing service” means providing computer
38storage or processing services to the public by means of an
39electronic communications system.

begin delete

40(g)

end delete

P6    1begin insert(h)end insert “User” means a person or entity who uses an electronic
2communication service and is duly authorized by the provider to
3engage in that use.



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