BILL NUMBER: AB 691	AMENDED
	BILL TEXT

	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

INTRODUCED BY   Assembly Member Calderon
   (Coauthors: Assembly Members  Travis Allen,   Chang,
 Chávez, Chu, Dababneh,  and Gonzalez  
Cristina Garcia,   Gatto,   Gonzalez,  
Steinorth,   and Waldron  )

                        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  or the trustee of the trust  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  executor or administrator
  executor, administrator, or trustee  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 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.  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 
compliance in good faith with a court order issued pursuant to
  disclosing records or contents as required or
permitted under  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  or the trustee of the trust  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  specificity, including a unique identifier assigned by
the provider.   specificity such that the information
given allows the provider to identify the decedent's account. 
   (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  executor or administrator  
executor, administrator, or trustee  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
 will   will, trust,  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  or the trustee of the trust 
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  or trust  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  (d),  
(g),  a provider shall disclose to the executor or
administrator of the estate  or the trustee of the trust 
the contents of the deceased user's account, to the extent reasonably
available,  only if the executor or administrator 
 if the executor, administrator, or trustee  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  or trust  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 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:  
   (1) A written request for the record or information that is
narrowly tailored to the purpose of administering the estate or
trust.  
   (2) A copy of the death certificate of the deceased user. 

   (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.  
   (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:  
   (1) All of the items required under subdivision (d).  
   (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.  
   (f) A provider shall not be held liable for disclosing records or
contents as required or permitted under this act.  
   (d) 
    (g)  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.

   (e) 
    (h)  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  or the
trustee of the trust  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
provider to permit  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.