Amended in Senate April 11, 2016

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

California Legislature—2015–16 Regular Session

Assembly Bill No. 691

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. begin delete The Privacy Expectation Afterlife and Choices Act. end delete begin insert Revised Uniform Fiduciary Access to Digital Assets Act. end insert

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.

begin delete

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.

end delete begin insert

This bill would enact the Revised Uniform Fiduciary Access to Digital Assets Act, which would authorize a decedent’s personal representative or trustee to access and manage digital assets and electronic communications, as specified. The bill would authorize a person to use an online tool to give directions to the custodian of his or her digital assets regarding the disclosure of those assets. The bill would specify that, if a person has not used an online tool to give that direction, he or she may give direction regarding the disclosure of digital assets in a will, trust, power of attorney, or other record. The bill would require a custodian of the digital assets to comply with a fiduciary’s request for disclosure of digital assets or to terminate an account, except under certain circumstances, including when the decedent has prohibited this disclosure using the online tool. The bill would make custodians immune from liability for an act or omission done in good faith in compliance with these provisions.

end insert

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Part 20 (commencing with Section 870) is added
to Division 2 of the end insert begin insert Probate Code end insert begin insert , to read: end insert

begin insert

 

PART  begin insert 20. end insert   Revised Uniform Fiduciary Access to
Digital Assets Act

 

begin insert 870. end insert   

This part shall be known, and may be cited, as the Revised
Uniform Fiduciary Access to Digital Assets Act.

begin insert 871. end insert   

As used in this part, the following terms shall have the
following meanings:

(a) “Account” means an arrangement under a terms-of-service
agreement in which the custodian carries, maintains, processes,
receives, or stores a digital asset of the user or provides goods or
services to the user.

(b) “Carries” means engages in the transmission of electronic
communications.

(c) “Catalogue of electronic communications” means
information that identifies each person with which a user has had
an electronic communication, the time and date of the
communication, and the electronic address of the person.

(d) “Content of an electronic communication” means
information concerning the substance or meaning of the
communication, which meets all of the following requirements:

(1) Has been sent or received by a user.

(2) Is in electronic storage by a custodian providing an
electronic communication service to the public or is carried or
maintained by a custodian providing a remote-computing service
to the public.

(3) Is not readily accessible to the public.

(e) “Court” means the superior court presiding over the judicial
proceedings which have been initiated under this code to
administer the estate of the deceased user, or, if none, the superior
court sitting in the exercise of jurisdiction under this code in the
county of the user’s domicile, and the court, as defined in this
section, shall have exclusive jurisdiction over proceedings brought
under this part.

(f) “Custodian” means a person that carries, maintains,
processes, receives, or stores a digital asset of a user.

(g) “Designated recipient” means a person chosen by a user
using an online tool to administer digital assets of the user.

(h) “Digital asset” means an electronic record in which an
individual has a right or interest. The term “digital asset” does
not include an underlying asset or liability, unless the asset or
liability is itself an electronic record.

(i) “Electronic” means relating to technology having electrical,
digital, magnetic, wireless, optical, electromagnetic, or similar
capabilities.

(j) “Electronic communication” has the same meaning as the
definition in Section 2510(12) of Title 18 of the United States Code.

(k) “Electronic communication service” means a custodian that
provides to a user the ability to send or receive an electronic
communication.

(l) “Fiduciary” means an original, additional, or successor
personal representative or trustee.

(m) “Information” means data, text, images, videos, sounds,
codes, computer programs, software, databases, or other items
with like characteristics.

(n) “Online tool” means an electronic service provided by a
custodian that allows the user, in an agreement distinct from the
terms-of-service agreement between the custodian and user, to
provide directions for disclosure or nondisclosure of digital assets
to a third person.

(o) “Person” means an individual, estate, business or nonprofit
entity, public corporation, government or governmental
subdivision, agency, or instrumentality, or other legal entity.

(p) “Personal representative” means an executor, administrator,
special administrator, or person that performs substantially the
same function under any other law.

(q) “Power of attorney” means a record that grants an agent
authority to act in the place of the principal.

(r) “Record” means information that is inscribed on a tangible
medium or that is stored in an electronic or other medium and is
retrievable in a perceivable form.

(s) “Remote-computing service” means a custodian that
provides to a user computer processing services or the storage of
digital assets by means of an electronic communications system,
as defined in Section 2510(4) of Title 18 of the United States Code.

(t) “Terms-of-service agreement” means an agreement that
controls the relationship between a user and a custodian.

(u) “Trustee” means a fiduciary with legal title to property
under an agreement or declaration that creates a beneficial interest
in another. The term includes a successor trustee.

(v) “User” means a person that has an account with a custodian.

(w) “Will” includes a codicil, a testamentary instrument that
only appoints an executor, or an instrument that revokes or revises
a testamentary instrument.

begin insert 872. end insert   

(a) This part shall apply to any of the following:

(1) A fiduciary acting under a will executed before, on, or after
January 1, 2017.

(2) A personal representative acting for a decedent who died
before, on, or after January 1, 2017.

(3) A trustee acting under a trust created before, on, or after
January 1, 2017.

(4) A custodian of digital assets for a user if the user resides in
this state or resided in this state at the time of the user’s death.

(b) This part shall not apply to a digital asset of an employer
used by an employee in the ordinary course of the employer’s
business.

begin insert 873. end insert   

(a) A user may use an online tool to direct the custodian
to disclose to a designated recipient or not disclose some or all of
the user’s digital assets, including the content of electronic
communications. If the online tool allows the user to modify or
delete a direction at all times, a direction regarding disclosure
using an online tool overrides a contrary direction by the user in
a will, trust, power of attorney, or other record.

(b) If a user has not used an online tool to give direction under
subdivision (a) or if a custodian has not provided an online tool,
a user may allow or prohibit in a will, trust, power of attorney, or
other record the disclosure to a fiduciary of some or all of the
user’s digital assets, including the contents of electronic
communications sent or received by the user.

(c) A user’s direction under subdivision (a) or (b) overrides a
contrary provision in a terms-of-service agreement that does not
require the user to act affirmatively and distinctly from the user’s
assent to the terms-of-service agreement.

begin insert 874. end insert   

(a) This part does not change or impair a right of a
custodian or a user under a terms-of-service agreement to access
and use digital assets of a user.

(b) This part does not give a fiduciary or designated recipient
any new or expanded rights other than those held by the user for
whom, or for whose estate or trust, the fiduciary or designated
recipient acts or represents.

(c) A fiduciary’s or designated recipient’s access to digital
assets may be modified or eliminated by a user, by federal law, or
by a terms-of-service agreement when the user has not provided
any direction that is recognized in Section 873.

begin insert 875. end insert   

(a) When disclosing the digital assets of a user under this
part, the custodian may, in its sole discretion, do any of the
following:

(1) Grant the fiduciary or designated recipient full access to
the user’s account.

(2) Grant the fiduciary or designated recipient partial access
to the user’s account sufficient to perform the tasks with which the
fiduciary or designated recipient is charged.

(3) Provide the fiduciary or designated recipient with a copy
in a record of any digital asset that, on the date the custodian
received the request for disclosure, the user could have accessed
if the user were alive and had full capacity and access to the
account.

(b) A custodian may assess a reasonable administrative charge
for the cost of disclosing digital assets under this part.

(c) A custodian need not disclose under this part a digital asset
deleted by a user.

(d) If a user directs or a fiduciary or designated recipient
requests a custodian to disclose under this part some, but not all,
of the user’s digital assets, the custodian need not disclose the
assets if segregation of the assets would impose an undue burden
on the custodian. If the custodian believes the direction or request
imposes an undue burden, the custodian, fiduciary, or designated
recipient may petition the court for an order to do any of the
following:

(1) Disclose a subset limited by date of the user’s digital assets.

(2) Disclose all of the user’s digital assets to the fiduciary or
designated recipient.

(3) Disclose none of the user’s digital assets.

(4) Disclose all of the user’s digital assets to the court for review
in camera.

begin insert 876. end insert   

If a deceased user consented to or a court directs
disclosure of the content of electronic communications of the user,
the custodian shall disclose to the personal representative of the
estate of the user the content of an electronic communication sent
or received by the user if the personal representative gives to the
custodian all of the following:

(a) A written request for disclosure in physical or electronic
form.

(b) A certified copy of the death certificate of the user.

(c) A certified copy of the letter of appointment of the
representative, a small-estate affidavit under Section 13101, or
court order.

(d) Unless the user provided direction using an online tool, a
copy of the user’s will, trust, power of attorney, or other record
evidencing the user’s consent to disclosure of the content of
electronic communications.

(e) If requested by the custodian, any of the following:

(1) A number, user name, address, or other unique subscriber
or account identifier assigned by the custodian to identify the user’s
account.

(2) Evidence linking the account to the user.

(3) An order of the court finding any of the following:

(A) That the user had a specific account with the custodian,
identifiable by the information specified in paragraph (1).

(B) That disclosure of the content of the user’s electronic
communications would not violate Section 2701 et seq. of Title 18
of, and Section 222 of Title 47 of, the United State Code, or other
applicable law.

(C) Unless the user provided direction using an online tool, that
the user consented to disclosure of the content of electronic
communications.

(D) That disclosure of the content of electronic communications
of a user is reasonably necessary for estate administration.

begin insert 877. end insert   

Unless the user prohibited disclosure of digital assets or
the court directs otherwise, a custodian shall disclose to the
personal representative of the estate of a deceased user a catalogue
of electronic communications sent or received by the user and
digital assets, other than the content of electronic communications,
of the user, if the personal representative gives to the custodian
all of the following:

(a) A written request for disclosure in physical or electronic
form.

(b) A certified copy of the death certificate of the user.

(c) A certified copy of the letter of appointment of the
representative, a small-estate affidavit under Section 13101, or
court order.

(d) If requested by the custodian, any of the following:

(1) A number, user name, address, or other unique subscriber
or account identifier assigned by the custodian to identify the user’s
account.

(2) Evidence linking the account to the user.

(3) An affidavit stating that disclosure of the user’s digital assets
is reasonably necessary for estate administration.

(4) An order of the court finding either of the following:

(A) That the user had a specific account with the custodian,
identifiable by the information specified in paragraph (1).

(B) That disclosure of the user’s digital assets is reasonably
necessary for estate administration.

begin insert 878. end insert   

Unless otherwise ordered by the court, directed by the
user, or provided in a trust, a custodian shall disclose to a trustee
that is not an original user of an account the content of an
electronic communication sent or received by an original or
successor user and carried, maintained, processed, received, or
stored by the custodian in the account of the trust if the trustee
gives to the custodian all of the following:

(a) A written request for disclosure in physical or electronic
form.

(b) A certified copy of the death certificate of the settlor.

(c) A certified copy of the trust instrument, or a certification of
trust under Section 18100.5, evidencing the settlor’s consent to
disclosure of the content of electronic communications to the
trustee.

(d) A certification by the trustee, under penalty of perjury, that
the trust exists and that the trustee is a currently acting trustee of
the trust.

(e) If requested by the custodian, any of the following:

(1) A number, username, address, or other unique subscriber
or account identifier assigned by the custodian to identify the
trust’s account.

(2) Evidence linking the account to the trust.

begin insert 879. end insert   

Unless otherwise ordered by the court, directed by the
user, or provided in a trust, a custodian shall disclose, to a trustee
that is not an original user of an account, the catalogue of
electronic communications sent or received by an original or
successor user and stored, carried, or maintained by the custodian
in an account of the trust and any digital assets, other than the
content of electronic communications, in which the trust has a
right or interest if the settlor of the trust is deceased and the trustee
gives the custodian all of the following:

(a) A written request for disclosure in physical or electronic
form.

(b) A certified copy of the death certificate of the settlor.

(c) A certified copy of the trust instrument or a certification of
trust under Section 18100.5.

(d) A certification by the trustee, under penalty of perjury, that
the trust exists and that the trustee is a currently acting trustee of
the trust.

(e) If requested by the custodian, any of the following:

(1) A number, username, address, or other unique subscriber
or account identifier assigned by the custodian to identify the
trust’s account.

(2) Evidence linking the account to the trust.

begin insert 880. end insert   

(a) The legal duties imposed on a fiduciary charged with
managing tangible property apply to the management of digital
assets, including all of the following:

(1) The duty of care.

(2) The duty of loyalty.

(3) The duty of confidentiality.

(b) All of the following shall apply to a fiduciary’s or designated
recipient’s authority with respect to a digital asset of a user:

(1) Except as otherwise provided in Section 873, a fiduciary’s
or designated recipient’s authority is subject to the applicable
terms-of-service agreement.

(2) A fiduciary’s or designated recipient’s authority is subject
to other applicable law, including copyright law.

(3) In the case of a fiduciary, a fiduciary’s authority is limited
by the scope of the fiduciary’s duties.

(4) A fiduciary’s or designated recipient’s authority may not
be used to impersonate the user.

(c) A fiduciary with authority over the property of a decedent
or settlor has the right of access to any digital asset in which the
decedent or settlor had a right or interest and that is not held by
a custodian or subject to a terms-of-service agreement.

(d) A fiduciary acting within the scope of the fiduciary’s duties
is an authorized user of the property of the decedent or settlor for
the purpose of applicable computer-fraud and
unauthorized-computer-access laws.

(e) The following shall apply to a fiduciary with authority over
the tangible, personal property of a decedent or settlor:

(1) The fiduciary has the right to access the property and any
digital asset stored in it.

(2) The fiduciary is an authorized user for purposes of any
applicable computer-fraud and unauthorized-computer-access
laws.

(f) A custodian may disclose information in an account to a
fiduciary of the decedent or settlor when the information is required
to terminate an account used to access digital assets licensed to
the user.

(g) A fiduciary of a decedent or settlor may request a custodian
to terminate the user’s account. A request for termination shall be
in writing, in either physical or electronic form, and accompanied
by all of the following:

(1) If the user is deceased, a certified copy of the death
certificate of the user.

(2) A certified copy of the letter of appointment of the
representative, a small-estate affidavit under Section 13101, a
court order, a certified copy of the trust instrument or a
certification of the trust under Section 18100.5 giving the fiduciary
authority over the account.

(3) If requested by the custodian, any of the following:

(A) A number, user name, address, or other unique subscriber
or account identifier assigned by the custodian to identify the user’s
account.

(B) Evidence linking the account to the user.

(C) A finding by the court that the user had a specific account
with the custodian, identifiable by the information specified in
subparagraph (A).

begin insert 881. end insert   

(a) Not later than 60 days after receipt of the information
required under Sections 876 to Section 879, inclusive, a custodian
shall comply with a request under this part from a fiduciary or
designated recipient to disclose digital assets or terminate an
account. If the custodian fails to comply with a request, the
fiduciary or designated recipient may apply to the court for an
order directing compliance.

(b) An order under subdivision (a) directing compliance shall
contain a finding that compliance is not in violation of Section
2702 of Title 18 of the United States Code.

(c) A custodian may notify a user that a request for disclosure
of digital assets or to terminate an account was made pursuant to
this part.

(d) A custodian may deny a request under this part from a
fiduciary or designated recipient for disclosure of digital assets
or to terminate an account if the custodian is aware of any lawful
access to the account following the date of death of the user.

(e) This part does not limit a custodian’s ability to obtain or to
require a fiduciary or designated recipient requesting disclosure
or account termination under this part to obtain a court order that
makes all of the following findings:

(1) The account belongs to the decedent, principal, or settlor.

(2) There is sufficient consent from the decedent, principal, or
settlor to support the requested disclosure.

(3) Any specific factual finding required by any other applicable
law in effect at that time, including, but not limited to, a finding
that disclosure is not in violation of Section 2702 of Title 18 of the
Untied States Code.

(f) A custodian and its officers, employees, and agents are
immune from liability for an act or omission done in good faith in
compliance with this part.

begin insert 882. end insert   

In applying and construing this part, which is based upon
a uniform act, consideration shall be given to the need to promote
uniformity of the law with respect to its subject matter among
states that enact similar acts.

begin insert 883. end insert   

This part modifies, limits, or supersedes the federal
Electronic Signatures in Global and National Commerce Act (15
U.S.C. Sec. 7001 et seq.), but does not modify, limit, or supersede
Section 101(c) of that act (15 U.S.C. Sec. 7001(c)) or authorize
electronic delivery of any of the notices described in Section 103(b)
of that act (15 U.S.C. Sec. 7003(b)).

begin insert 884. end insert   

Disclosure of the contents of the deceased user’s or
settlor’s account to a fiduciary of the deceased user or settlor is
subject to the same license, restrictions, terms of service, and legal
obligations, including copyright law, that applied to the deceased
user or settlor.

begin insert 885. end insert   

If any provision of this part or its application to any
person or circumstance is held invalid, the invalidity does not
affect other provisions or applications of this part that can be
given effect without the invalid provision or application, and, to
this end, the provisions of this part are severable.

end insert

begin delete

  

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.

end delete