Amended in Senate July 1, 2015

Amended in Assembly April 30, 2015

Amended in Assembly April 20, 2015

Amended in Assembly April 14, 2015

Amended in Assembly March 23, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 691

Introduced by Assembly Member Calderon

(Coauthors: Assembly Members begin insert Travis Allen, Chang, end insert Chávez, Chu, Dababneh, begin delete and Gonzalez end delete begin insert Cristina Garcia, Gatto, Gonzalez, Steinorth, and Waldron end insert )

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 begin insert or the trustee of the trust end insert a record or other information pertaining to the account of the deceased 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 begin delete executor or administrator end delete begin insert executor, administrator, or trustee end insert 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. begin insert The bill would permit a provider to disclose a decedent’s account information if the executor, administrator, or trustee gives the provider documents and information, as specified. The bill would additionally permit a provider to disclose contents of communications or stored contents if an executor, administrator, or trustee gives the provider documents and information, as specified, including a will or trust showing the decedent’s express consent for disclosure of the contents. end insert The bill would allow a provider to require the requester to pay the direct costs of producing a copy of the record or other information pertaining to the account of the deceased, when those records are not already available for production during the ordinary course of business. 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 begin delete compliance in good faith with a court order issued pursuant to end delete begin insert disclosing records or contents as required or permitted under end insert 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 begin insert or the trustee of the trust end insert a record or
other information pertaining to the account of the deceased 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 begin delete specificity, including a unique identifier assigned
by the provider. end delete begin insert specificity such that the information given allows
the provider to identify the decedent’s account. end insert

(4) There are no other owners of, or persons or entities who
have registered with the provider 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 the purpose
of administering the estate.

(7) The begin delete executor or administrator end delete begin insert executor, administrator, or
trustee end insert 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 made a
request for information that specifically requests data older than
18 months prior to the date of death.

(9) The request is not in conflict with the deceased user’s begin delete will end delete
begin insert will, trust, end insert 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 begin insert or the trustee of the trust end insert 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 begin insert or trust end insert of the decedent, 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
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 begin delete (d), end delete begin insert (g), end insert a provider shall
disclose to the executor or administrator of the estate begin insert or the trustee
of the trust end insert the contents of the deceased user’s account, to the
extent reasonably available, begin delete only if the executor or administrator end delete
begin insert if the executor, administrator, or trustee end insert 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
begin insert or trust end insert of the deceased that includes all of the findings required
in subdivision (b).

begin delete

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

end delete begin insert

(d) A provider may disclose to the executor, administrator, or
trustee a record or other information pertaining to the account of
the deceased user that is in electronic storage with the provider,
but not the contents of communications or stored contents, if the
executor, administrator, or trustee gives the provider all of the
following:

end insert begin insert

(1) A written request for the record or information that is
narrowly tailored to the purpose of administering the estate or
trust.

end insert begin insert

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

end insert begin insert

(3) Identification of the account belonging to the deceased user
made with specificity such that the information given allows the
provider to identify the decedent’s account.

end insert begin insert

(e) An electronic service provider may disclose to the executor
or administrator of an estate or the trustee of a trust the contents
of communications or stored contents if the executor, administrator,
or trustee gives the provider both of the following:

end insert begin insert

(1) All of the items required under subdivision (d).

end insert begin insert

(2) The will or trust of the deceased user showing the deceased
user’s express consent for disclosure of the contents to the
executor, administrator, or trustee.

end insert begin insert

(f) A provider shall not be held liable for disclosing records or
contents as required or permitted under this act.

end insert begin delete

(d)

end delete

begin insert (g) end insert  A provider served with an order compelling disclosure of
deceased user 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. However, a cost that
the requester offers to pay pursuant to subdivision (e) shall not be
considered when a court is making a determination whether the
request constitutes an 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.

begin delete

(e)

end delete

begin insert (h) end insert  A provider may require the requester to pay the direct costs
of producing a copy of the record or other information pertaining
to the account of the deceased, when those records are not already
available for production during the ordinary course of business.

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 begin insert or the trustee
of the trust end insert 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 begin insert a provider
to permit end insert 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” or “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.

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

(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.

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

(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.

(g) “Provider” means an electronic communication service or
remote computing service.

(h) “Record” means a record regarding a communication sent
or received by a subscriber or user of an electronic 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.

(i) “Remote computing service” means providing computer
storage or processing services to the public by means of an
electronic communications system.

(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.