BILL NUMBER: AB 691	AMENDED
	BILL TEXT

	AMENDED IN SENATE  SEPTEMBER 4, 2015
	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, 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).   Act. 
   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 defined electronic communication
service or remote computing service (provider) to disclose specified
information pertaining to the account of a deceased user to the
personal representative of the decedent's estate or the trustee of
the decedent's trust if provided with prescribed information. The
bill would authorize a probate court with jurisdiction over the
deceased user's estate or trust to order disclosure of certain
information if the court makes specified findings, including that the
request for disclosure is narrowly tailored to the purpose of
administering the estate or trust. The bill would prescribe
circumstances under which the provider would not be compelled to
disclose a record or the contents of a communication and would exempt
a provider from liability for disclosing records or contents as
required or permitted by the act.  
   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, 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 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 shall be known, and may be cited, as the Privacy
Expectation Afterlife and Choices Act.
   871.  (a) A provider may disclose to the personal representative
of the estate of the deceased user or the trustee of the deceased
user's 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 electronic communications or stored
contents, if the personal representative 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 or a copy
of a written certification authorized pursuant to Section 7603.
   (3) Identification of the account belonging to the deceased user
made with sufficient specificity that the information given allows
the provider to identify the account of the deceased user.
   (b) A provider may disclose to the personal representative of an
estate or the trustee of a trust the contents of communications or
stored contents if the personal representative or trustee gives the
provider both of the following:
   (1) All of the items required pursuant to subdivision (a).
   (2) The will, trust, or evidence of a choice made by the deceased
user within the product or service evidencing the deceased user's
express consent for disclosure of the contents to the personal
representative or trustee.
   (c) A provider may decline to respond to a request pursuant to
subdivision (a) because of a concern that complying with the request
may violate any other legal authority, be contrary to the wishes of
the user, or be otherwise inappropriate. Under any of those
circumstances, a probate court that has jurisdiction over the estate
or trust of the deceased user may order a provider to disclose to the
personal representative 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 fact based upon a sworn
declaration, indicating the good faith belief and efforts of the
personal representative or trustee, or any 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 sufficient specificity that the information given allows the
provider to identify the account of the deceased user.
   (4) There are no other owners of, or persons or entities who have
registered with the provider with respect to, the account of the
deceased user.
   (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 or trust.
   (7) The personal representative or trustee demonstrates a good
faith belief that the information requested is relevant to resolve
matters regarding assets or liabilities of the estate or trust.
   (8) The request seeks information spanning no more than 18 months
immediately prior to the date of death, or the requester has made a
request for information that specifically requests data older than 18
months immediately prior to the date of death.
   (9) The request is not in conflict with the 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 account of the deceased user.
   (d) A provider may decline to respond to a request pursuant to
subdivision (b) because of a concern that complying with the request
may violate any other legal authority, be contrary to the wishes of
the deceased user, or be otherwise inappropriate. Under those
circumstances, a probate court that has jurisdiction of the estate or
trust of the deceased user may order a provider to disclose to the
personal representative or the trustee the contents of communications
or stored contents, if the court makes all of the following findings
of fact based upon a sworn declaration, indicating the good faith
belief and efforts of the personal representative or trustee, or any
other admissible evidence:
   (1) The will or trust of the deceased user, or a choice made by
the deceased user as part of the product or service, regarding the
manner in which the contents may be used after a set period of
inactivity after the death of the user, or other event evidences the
express consent of the user to the disclosure of the requested
contents.
   (2) The findings required by paragraphs (1) to (8), inclusive, of
subdivision (c).
   (e) If a probate proceeding has not been opened, following a
denial from a provider pursuant to subdivision (c) or (d), a personal
representative or trustee may file a verified petition seeking an
order compelling the provider to provide the requested records or
information. This petition shall be filed in the superior court of
the county agreed to by the user in the terms of service agreement
or, in the absence of that agreement, the county in which the
deceased user resided at death. The petitioner shall be the personal
representative of the deceased user or, if none, the successor
trustee of a revocable trust created by the deceased user or the
deceased user's successor in interest, as defined in Section 377.11
of the Code of Civil Procedure. A probate proceeding does not need to
be opened in order for this petition to be filed and resolved. The
petition shall be titled in the name of the deceased user and shall
set forth all of the facts required under subdivision (b) or (c).
   (f) Except as provided in subdivision (g), a provider shall
disclose to the personal representative of the estate or the trustee
of the trust the contents of communications or stored contents of the
deceased user's account, to the extent reasonably available, only if
the personal representative or trustee gives the provider all of the
following:
   (1) A written request for the contents of the account of the
deceased user.
   (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 user that includes both of the facts
required in subdivision (b).
   (g) A provider served with an order compelling disclosure of
deceased user records or contents pursuant to this section may make a
motion to vacate or modify the order within 90 days after receiving
the order. Upon a motion and a showing of good cause, the court may
limit this time frame to 60 days. The court may 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 (h) shall not be
considered by a court in making a determination whether the request
constitutes an undue burden.
   (2) Vacate the order if any of the applicable requirements of
subdivision (a) or (b) are not met.
   (3) Vacate 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.

   (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 user 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 the manner in which the user's records or the
contents of communications are to be used 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 personal representative of the estate or the trustee
of the trust is subject to the same license, restrictions, terms of
service, and legal obligations, including copyright law, that applied
to the deceased user.
   (b) This part does not require a provider to permit a requesting
party to assume control of a deceased user's account.
   874.  A provider is not liable for disclosing records or contents
as required or permitted 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) "Contents" means information concerning the substance,
purport, or meaning of communications, including the subject line of
the communication and data stored by a remote computer service on
behalf of the user.
   (c) "Electronic communication" shall have the same meaning as in
Section 2510 of Title 18 of the United States Code.
   (d) "Electronic communication service" means a service that
provides to users the ability to send or receive wire or electronic
communications.
   (e) "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.
   (f) "Provider" means an electronic communication service or remote
computing service.
   (g) "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 and online addresses of other
individuals with whom the account holder has communicated.
   (h) "Remote computing service" means a service that provides
computer storage or processing services to the public by means of an
electronic communications system.
   (i) "Undue burden" shall be interpreted consistently with the
interpretation of that term as used in Section 2031.310 of the Code
of Civil Procedure.
   (j) "User" means a person or entity who has lawfully obtained
credentials to access an account with a provider in a manner
consistent with the terms of service that apply to that account.
 
  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 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, 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,
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 (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, 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).
   (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.
   (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.

   (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.