BILL NUMBER: AB 691 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 20, 2015
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 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. user that is in
electronic storage with the provider. 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 the information requested is
relevant to resolve issues regarding assets or liabilities
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 an intent
to disallow disclosure by either deleting the records or contents
during the user's lifetime, or affirmatively indicating, 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. 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 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, user
that is in electronic storage with the provider, 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
owners of, or persons or entities who have registered
with the electronic communication service with respect to, the
deceased user's account.
(5) Disclosure is not in violation of another applicable
federal or state law.
(6) The request for disclosure is narrowly tailored to
effectuate the purpose of administering the estate.
(7) The executor or administrator demonstrates a good faith belief
that the information requested is relevant to resolve issues
regarding assets or liabilities of the estate.
(8) The request seeks information spanning no more than 18 months
prior to the date of death, or the requester has provided
evidence of a need to obtain information more than 18 months prior to
the date of death.
(9) The request is not in conflict with the deceased user's will
or other written, electronic, or oral 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 or
a choice made by the deceased user within the product or
service or otherwise regarding how the user's contents can
be treated after a set period of inactivity, or other
provision or event signifies inactivity after the user'
s death, or other event evidences 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).
(c) Except as provided in subdivision (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 (b).
(4) An order that the estate shall first indemnify the provider
from any and all liability in complying with the order.
(d) A provider served with an order compelling disclosure of
subscriber records or contents pursuant to this section may make a
motion to quash or modify the order within a reasonable time after
receiving the order. The court shall 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 the
preponderance of the 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 an intent to disallow disclosure
through either deletion of the records or contents during the user's
lifetime, or 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 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) "Asset" means anything of financial value that is part of the
estate of the decedent.
(b) "Authorized user" means a person or entity who has lawfully
obtained credentials to access an account with an electronic
communication service in a manner consistent with the terms of
service that apply to that account.
(a)
(c) "Contents" means information concerning the
substance, purport, or meaning of communications and includes the
subject line of the communication.
(b)
(d) "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)
(e) "Electronic communication service" means a service
that provides to users the ability to send or receive wire or
electronic communication.
(d)
(f) "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)
(g) "Provider" means an electronic communication
service or remote computing service.
(f)
(h) "Record" means a record regarding a communication
sent or received by a subscriber or user of an electronic
communications communication 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.
(g)
(i) "Remote computing service" means providing computer
storage or processing services to the public by means of an
electronic communications system.
(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.
(j) "Undue burden" shall be interpreted consistently with the
interpretation of that term as used in Section 2031.310 of the Code
of Civil Procedure.