BILL NUMBER: AB 691 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 14, 2015
AMENDED IN ASSEMBLY MARCH 23, 2015
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 authorize
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 account of the deceased user,
but not the contents of communications or stored contents.
user . 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 the
information requested is relevant to resolve issues regarding
fiscal assets of the estate. 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. The bill would exempt the provider from disclosure
if the deceased user expressed a different intent through
an intent to disallow disclosure by either
deletion of deleting 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
event. The bill would also 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:
SECTION 1. Part 20 (commencing with Section 870) is added to
Division 2 of the Probate Code, to read:
PART 20. Privacy Expectation Afterlife and Choices
870. This part may be known, and may be cited, as the Privacy
Expectation Afterlife and Choices Act.
871. (a) A probate court that has jurisdiction of the estate of
the deceased user shall may order a
provider to disclose to the executor or administrator of the estate a
record or other information pertaining to the account of the
deceased user, but not the contents of communications or stored
contents, if the court makes all of the following findings of facts
based upon a sworn declaration of the personal
representative or other admissible evidence :
(1) The user is deceased.
(2) The deceased user was the subscriber to or customer of the
provider.
(3) The account belonging to the deceased user has been identified
with specificity, including a unique identifier assigned by the
provider.
(4) There are no other authorized users or owners of the deceased
user's account.
(5) Disclosure is not in violation of another applicable law.
(6) The request for disclosure is narrowly tailored to
effect effectuate the purpose of the
administration of administering the estate.
(7) The executor or administrator demonstrates a good faith belief
that account records are the information
requested is relevant to resolve issues regarding
fiscal assets of the estate.
(8) The request seeks information spanning no more than a
year 18 months prior to the date of death.
(9) The request is not in conflict with the deceased user's will
or other expression of the deceased user's intent regarding
access to or disposition of information contained in or regarding the
user's account .
(b) A probate court that has jurisdiction of the estate of the
deceased user may order a provider to disclose to the executor or
administrator of the estate the contents of communications or stored
contents, if the court makes all of the following findings of facts
based upon a sworn declaration of the personal representative or
other admissible evidence:
(1) The will of the decedent, a setting within the product or
service regarding how the user's contents can be treated after a set
period of inactivity, or other provision or event signifies the
decedent's express consent to the disclosure of the requested
contents.
(2) The findings required by paragraphs (1) to (8), inclusive, of
subdivision (a).
(b)
(c) Except as provided in subdivision (c)
(d) , a provider shall disclose to the executor
or administrator of the estate the contents of the deceased user's
account, to the extent reasonably available, only if the executor or
administrator gives the provider all of the following:
(1) A written request for the contents of the deceased user's
account.
(2) A copy of the death certificate of the deceased user.
(3) An order of the probate court with jurisdiction over the
estate of the deceased that includes all of the findings required in
subdivision (a) (b) .
(4) An order that the estate shall first indemnify the provider
from any and all liability in complying with the order.
(c) If an order is served on a provider
(d) A provider served with an order
compelling disclosure of subscriber records or contents
pursuant to this section , the provider may make a
motion to quash or modify the order within a reasonable time
after receiving the order . The court shall grant the
motion if compliance with the order would cause an undue burden on
the provider or if any of the requirements of subdivision (b) are not
met. do any of the following:
(1) Modify the order to the extent that the court finds that
compliance with the order would cause an undue burden on the
provider, or quash the order if the court finds that the order cannot
be modified so as to avoid the undue burden.
(2) Quash the order if any of the applicable requirements of
subdivision (a) or (b) are not met.
(3) Quash the order if the court finds, based upon evidence
submitted by the provider or any other person, that any of the
circumstances set forth in Section 872 apply.
872. A provider shall not be compelled to disclose a record or
the contents of communications if any of the following apply:
(a) The deceased user expressed a different intent
an intent to disallow disclosure through either
deletion of the records or contents during the user's lifetime, or
affirmatively indicating an affirmative
indication , through a setting within the product or service,
of how the user's records or the content of communications
can be treated after a set period of inactivity or other event.
(b) The provider is aware of any indication of lawful access to
the account after the date of the deceased user's death or that the
account is not that of the deceased user.
(c) Disclosure violates the would violate
other applicable law, including, but not limited to,
electronic communications privacy provisions or copyright law.
873. (a) Disclosure of the contents of the deceased user's
account to the executor or administrator of the estate shall be
subject to the same license, restrictions, terms of service, and
legal obligations, including copyright law, that applied to the
deceased user.
(b) Nothing in this part shall be construed to require
a requesting party to assume control of a deceased user's account.
874. A provider shall not be held liable for compliance in good
faith with a court order issued pursuant to this part.
875. As used in this part, the following definitions shall apply:
(a) "Contents" means information concerning the substance,
purport, or meaning of communications and includes the subject line
of the communication.
(b) "Electronic communication" means a transfer of signs, signals,
writing, images, sounds, data, or intelligence of any nature that is
transmitted, in whole or in part, by a wire, radio, electromagnetic,
or photooptical system that affects interstate or foreign commerce.
"Electronic communication" does not include any of the following:
(1) Wire or oral communication.
(2) Communication made through a tone-only paging device.
(3) Communication from a tracking device.
(4) Electronic funds transfer information stored by a financial
institution in a communication system used for the electronic storage
and transfer of funds.
(c) "Electronic communication service" means a service that
provides to users the ability to send or receive wire or electronic
communication.
(d) "Electronic communications system" means a wire, radio,
electromagnetic, photooptical, or photoelectronic facility for the
transmission of wire or electronic communications and any computer
facilities or related electronic equipment for the electronic storage
of those communications.
(e) "Provider" means an electronic communication service or remote
computing service.
(f) "Record" means a record regarding a communication sent or
received by a subscriber or user of an electronic communications
service or remote computing service, including, but not limited to,
account logs that record account usage, cell-site data for mobile
telecommunications calls, and online addresses of other individuals
with whom the account holder has communicated.
(f)
(g) "Remote computing service" means providing computer
storage or processing services to the public by means of an
electronic communications system.
(g)
(h) "User" means a person or entity who uses an
electronic communication service and is duly authorized by the
provider to engage in that use.