BILL ANALYSIS Ó
AB 691
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Date of Hearing: April 28, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 691
Calderon - As Amended April 20, 2015
As Proposed to be Amended
SUBJECT: THE PRIVACY EXPECTATION AFTERLIFE AND CHOICES ACT
(PEAC)
KEY ISSUES:
1)should CALIFORNIA PROVIDE PROBATE COURTS WITH MORE clear
GUIDANCE ABOUT HOW TO HANDLE REQUESTS FROM ADMINISTRATORS OF
DECEDENTS' ESTATES WHO SEEK ELECTRONIC MAIL AND SOCIAL MEDIA
cONTENT AND COMMUNICATIONS FROM SERVICE PROVIDERS THAT ARE
NECESSARY FOR THE PURPOSE OF SETTLING THOSE ESTATES?
2)SHOULD SERVICE PROVIDERS ADOPT POLICIES STRONGLY PROTECTIVE OF
DECEASED USERS' PRIVACY BY REQUIRING ESTATE ADMINISTRATORS TO
PROVIDE EVIDENCE OF A DECEDENT'S EXPRESS CONSENT TO DISCLOSE
THE CONTENTS OF COMMUINCATIONS BEFORE A PROBATE COURT MAY
ORDER SUCH DISCLOSURE?
SYNOPSIS
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The number of people who use electronic communication and social
media has increased astronomically in recent years, and
continues to increase as new services and platforms are
developed and introduced to a public hungry to use them. What
happens to our social media and email accounts after we die
though? And particularly, what happens when the content of a
decedent's electronic communications, stored on a provider's
server, is needed by the decedent's representative to properly
settle the decedent's estate? Current state law addresses the
disposition of a person's property and assets through a will or
through intestate succession, but is still inadequate to address
many questions concerning the right to access electronic assets
or communications that may be necessary to settle the estate of
a deceased user. Service providers remain constricted by
federal electronic communications privacy laws that restrict to
whom, other than the account holder, they may disclose the
contents or records of communications. The response of state
courts, according to proponents of the bill, is often a
confusing mix of contract law, property law, and privacy law.
This bill, backed by the Internet Association and many online
companies, would establish the Privacy Expectation Afterlife and
Choices Act (PEAC). The Act seeks to provide a judicial
framework for the disclosure of electronic information from
service providers, as defined, to the representative of a
deceased user of the service for the purpose of administering
the decedent's estate. The bill adopts a strong approach to
protecting privacy by requiring evidence that the decedent
expressly consented to disclosure of the contents of
communications before the court may authorize such disclosure of
the contents. With respect to the record of the communications,
the bill authorizes the court to order disclosure if the request
for the record does not conflict with the decedent's will or
other expression of intent regarding access to such information.
The bill requires that the probate court make several
additional findings of fact in order to authorize disclosure of
either the record or the contents of communications, including
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but not limited to:
(1) there are no other owners or registered users of the
deceased user's account; (2) disclosure is not in violation of
another applicable federal or state law; and, importantly, (3)
the request for disclosure is narrowly tailored to the purpose
of administering the estate. Proposed author amendments to the
bill require the provider to disclose information older than 18
months whenever a specific request for that information is made,
and clarify that when a court is making a determination of
whether a request constitutes an undue burden on the provider,
any costs that the requester offers to pay shall not be
considered in that determination. Due to time constraints,
these proposed amendments will be taken in the next Committee.
The bill is supported by the Internet Association, including
Google, Facebook, Yahoo, and AOL, and the California Chamber of
Commerce, among others. Productive discussions with the Judicial
Council of California have so far yielded two sets of extensive
amendments to address various concerns about judicial
administration, and there continues to be no known opposition to
the bill. This bill will be referred to the new Assembly
Committee on Privacy and Consumer Protection should it be
approved by this Committee.
SUMMARY: Establishes the Privacy Expectation Afterlife and
Choices Act ("the Act") to provide a judicial framework for the
disclosure of electronic information from a communication
service provider, as defined, to the executor or administrator
of the estate of a deceased user of the service for the purpose
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of administering the estate. Specifically, this bill:
1)Authorizes a probate court that has jurisdiction of a deceased
user's estate to order an electronic communication service or
remote computing service ("provider") to disclose certain
types of information pertaining to the account of the deceased
user that is stored with the provider, if the court makes all
findings of fact specified to enable the disclosure of that
type of information.
2)With respect to a record of communications or other
information pertaining to a deceased user's account, but not
the contents of communications or stored contents, (hereafter
"record" or "catalog of communications"), the probate court
must find all of the following facts:
a) The user is deceased.
b) The deceased user was the subscriber to or customer of
the provider.
c) The account belonging to the deceased user has been
identified with specificity, including a unique identifier
assigned by the provider.
d) There are no other owners of, or persons or entities who
have registered with the electronic communication service
with respect to, the deceased user's account.
e) Disclosure is not in violation of another applicable
federal or state law.
f) The request for disclosure is narrowly tailored to the
purpose of administering the estate.
g) The executor or administrator demonstrates a good faith
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belief that the information requested is relevant to
resolve issues regarding assets or liabilities of the
estate.
h) 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.
i) 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.
3)With respect to the contents of communications or stored
contents ("contents"), the probate court must find all of the
following facts:
a) The findings required by Item 2(a) through 2(h) above;
and
b) The will 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.
4)Clarifies that the court must make all of the above findings
of facts based upon a sworn declaration of the personal
representative, or based upon other admissible evidence.
5)Requires a provider to disclose to the executor or
administrator of the estate the contents of the deceased
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user's account, to the extent reasonably available, only if
the executor or administrator gives the provider all of the
following:
a) A written request for the contents of the deceased
user's account.
b) A copy of the death certificate of the deceased user.
c) An order of the probate court with jurisdiction over the
estate of the deceased that includes all of the findings
required for disclosure of contents of communications or
stored contents. (see Item (3) above)
d) An order that the estate shall first indemnify the
provider from any and all liability in complying with the
order.
6)Prohibits a provider from being 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
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privacy provisions or copyright law.
7)Provides that a provider served with an order compelling
disclosure of subscriber records or contents may make a motion
to quash or modify the order within a reasonable time after
receiving the order, in which case the court shall do any of
the following:
a) 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. Further clarifies that a cost that the requester
offers to pay shall not be considered when a court is
making a determination whether a request constitutes an
undue burden.
b) Quash the order if any of the applicable required
findings of fact (Items 2 and 3, above) are not met.
c) 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 Item 6 (above) apply.
8)Allows 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.
9)Provides that 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
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service, and legal obligations, including copyright law, that
applied to the deceased user.
10)Provides that nothing in this Act shall be construed to
require a requesting party to assume control of a deceased
user's account.
11)Protects a provider from liability for good faith compliance
with a court order issued pursuant to the Act.
12)Defines a number of key terms, including "authorized user",
"contents", "electronic communication", "record", and "undue
burden," among others.
EXISTING LAW:
1)Provides for the disposition of a testator's property by will.
(Part 1 of Division 6 of the Probate Code, commencing with
Section 6100.)
2)Provides that any part of the estate of a decedent not
effectively disposed of by will passes to the decedent's heirs
as prescribed. (Part 2 of Division 6 of the Probate Code,
commencing with Section 6400.)
3)Provides that title to a decedent's property passes on the
decedent's death to the person to whom it is devised in the
decedent's last will or, in the absence of such a devise, to
the decedent's heirs as prescribed in the laws governing
intestate succession. (Probate Code Section 7000.)
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4)Provides that the decedent's property, including property
devised by a will, is generally subject to probate
administration, except as specified. (Probate Section 7001.)
5)Pursuant to the federal Electronic Communications Privacy Act,
restricts the ability of an electronic communication service
or remote computing service to share information with any
party but the user. (18 U.S.C. §§ 2510-22.)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: There can be no doubt that the number of people who
use electronic communication and social media has increased
astronomically in recent years, and continues to increase as new
services and platforms are developed and introduced. In 2014,
it was estimated that there are over 900 million Facebook users,
over 550 million users of Twitter, and hundreds of millions more
who use services like Google or Yahoo to send email, pay their
bills electronically, or store important documents or pictures.
For many users, social media and electronic communications have
expanded into almost every area of daily life, often in ways not
previously considered. As a result, lawmakers are increasingly
faced with novel policy questions that arise from ways in which
social media and the Internet impact our daily lives.
In focusing on the impact of social media and the Internet on
our daily lives, perhaps not enough attention has been paid to
this increasingly important question: What should happen to all
of our email and social media accounts after we die? Current
law addresses the disposition of a person's property and assets
through a will or through intestate succession, but is still
inadequate to address many questions with respect to rights to
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electronic assets or communications that may be necessary to
administrate the estate of a deceased user. For example, under
what circumstances should the administrator of an estate be able
to access the contents of the decedent's electronic
communications? Should the administrator of an estate be able to
access the entire history of a decedent's online stored content,
potentially even contents not needed to settle the estate?
Should a person's privacy settings that restrict the audience
that may view a person's content during life be honored after
death? This bill, introduced at the request of the Internet
Association and TechNet, seeks to provide a clear legal
framework to help courts resolve some of these questions, while
attempting to balance competing concerns of privacy protection
and efficient settling of decedents' estates.
Author's Statement. According to the author:
As Californians increasingly use online services like
YouTube, Twitter, Facebook and even email to produce and
store information, it is important to consider what happens
to all of these digital assets after we die. A recent
Zogby poll found that 70% of Americans say their online
communications and photos should remain private after they
die, unless they give prior consent for others to have
access. And 65% of Americans say it is a violation of their
privacy if that information is shared without such consent.
In the same study, only 15% say that estate attorneys
should have the discretion to decide what happens to
people's private communications and photos.
The Privacy Expectations Afterlife Choices Act ("the Act")
ensures Californians have the right to decide what happens
to their online private lives after they die. Most people
expect the contents of online communications like instant
messages and photos to remain private even after they pass
away. And the recipients of those messages likely expect
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the same. At the same time, loved ones' legitimate efforts
to settle a person's affairs should not be unreasonably
impeded. The Act honors individual choices while allowing
fiduciaries to get the information they need to settle an
estate. . . This bill strikes a balance between providing a
clear path for fiduciaries to access relevant information
to handle the deceased person's estate, while respecting
the privacy choices of not just the deceased person but
those with whom the deceased was communicating.
Stronger privacy interest in contents of communications vs.
record of communications. This bill adopts many key definitions
consistent with federal law, the Electronic Communications
Privacy Act of 1986 (ECPA). "Contents" are defined to mean
information concerning the substance, purport, or meaning of
communications and include the subject line of the
communication. This is distinguished from the "record" of
communications, which means the record of a communication sent
or received by a user, not including the contents but including
things like the account logs that record account usage,
cell-site data for mobile phone usage, and online addresses of
other persons with whom the user has communicated. Like ECPA,
this bill recognizes the stronger privacy interest that users
have in the content of their communications on social media and
through email. This interest is reflected in the requirements
in the bill for disclosure of contents compared to disclosure of
the record of communications.
Contents of communications: Evidence of express consent by
decedent needed to authorize disclosure of contents of
communications. The bill establishes a checklist of eight
findings of fact that the court must make in order to authorize
disclosure of information to an estate administrator. These
eight findings (discussed later) apply to both the contents and
the record of communications.
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With respect only to the contents of communication, the bill
requires that the court find that the will 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. In other words, there
must be some evidence that the decedent expressly consented to
disclosure of the contents to authorize disclosure. Otherwise,
there is no disclosure of the contents. The bill contemplates
that evidence of express consent can come in the form of (1) a
decedent's will; (2) a choice made by the deceased user within
the product or service (e.g. a checkbox or setting within a
Facebook account); or (3) some other event. If any one of these
forms evidences the user's express consent to disclosure, then
that may be sufficient for the court to make the finding
authorizing disclosure.
The Committee notes the likelihood that in many cases, the
decedent will have left either no will, or a will that is silent
with respect to electronic communications or digital assets. In
such cases, the only expression of the decedent's wishes may be
in the form of the account settings within the service or
platform itself. Proponents note that the account setting may
indicate how the user's contents can be treated after there has
been a set period of inactivity, rather than a setting directly
indicating consent to disclosure after death. The settings may
be more nuanced as well, indicating the user's wishes with
respect to some kinds of contents but not other kinds. The way
that settings are set up will certainly differ between service
providers, but the bill respects this flexibility and leaves
room for innovation by simply looking to any evidence of consent
to disclosure.
While the account settings provide a valuable opportunity to
indicate the user's wishes, it is also axiomatic that many users
of social media and email services do not closely monitor these
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settings or make affirmative decisions with respect to every
checkbox within a list of account settings. As a result, in the
absence of a will or other event, it may be that the default
setting-either a checked box or an unchecked box, as determined
by the service provider-is the only indication of a user's
wishes with respect to the disclosure of information. Under the
bill, the default setting would have to "evidence express
consent to disclosure." Because the author seeks to establish a
standard that is strongly protective of privacy and to limit
disclosure of the contents of communications, this approach
appears consistent with the intent of the legislation.
Record of communications: Disclosure authorized if request for
record does not conflict with decedent's will or other
expression of intent regarding access to such information. With
respect to the record of communications, the bill requires that
the court find that the request for disclosure 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. In contrast to the more
protective rule for contents of communications (which have a
greater expectation of privacy), the bill does not specifically
require express consent of the decedent to authorize disclosure
of the record of communications, and recognizes that an
expression of intent in the decedent's will controls if there
are any conflicting indications.
The bill also provides that a provider shall not be compelled to
disclose either the record or the contents under certain
circumstances. If disclosure would violate other applicable
privacy law or copyright law, then disclosure is not compelled.
Similarly, if the provider becomes aware that the account does
not belong to the deceased user, or that there is other lawful
access to the account after the user's death (indicating a
shared account with at least one other authorized, living user),
then disclosure would not be compelled.
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Finally, disclosure is not compelled under the bill if 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. According to the author, this treats
any evidence that the user, while alive, took affirmative steps
to delete either the records or contents as sufficient to (1)
establish that the user did not expressly consent to disclosure,
in the case of contents; or (2) establish that disclosure would
conflict with an expression of the user's intent not to
disclose, in the case of communications.
Findings of fact needed to authorize disclosure of either
contents or records. The bill requires that the probate court
make all of the following findings of fact in order to authorize
disclosure of either the record or the contents of
communications:
(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 owners of, or persons or entities who
have registered with the electronic communication service with
respect to, the deceased user's account.
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(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 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
specific request for information older than 18 months prior to
the date of death.
Author's amendment to clarify that a specific request for
information older than 18 months must be honored, if made. As
currently in print, the bill requires a finding of fact that the
estate administrator's request seeks information spanning no
more than 18 months prior to the decedent's date of death, or
that the requester has provided evidence of a need to obtain
information going back more than 18 months. Because the request
for disclosure already must be narrowly tailored to the purpose
of administering the estate, there is less justification to
impose an arbitrary 18-month time limit on the information that
may be disclosed without requiring presentation of evidence not
otherwise defined in the bill. Accordingly, the author proposes
to amend the bill to remove the presentation of evidence
requirement, and instead require the provider to disclose
information older than 18 months whenever a specific request for
information older than 18 months is made. The amendment is:
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On page 3, lines 12-13, strike "provided evidence of a need
to obtain information more than" and replace with "made a
request for information that specifically requests data
older than"
Author's amendments clarify rules for determining that a request
for information creates an undue burden for the provider. The
bill authorizes a court, in response to a motion to quash or
modify an order compelling disclosure of a user's records or
contents, to modify the order to the extent that it finds that
compliance with the order would cause an undue burden on the
provider. The bill provides that the term "undue burden" shall
be interpreted consistently with Section 2031.310 of the Code of
Civil Procedure, relating to undue burden in response to a
demand for inspection in civil discovery. According to the
author, the intent of the undue burden provision is "to address
scenarios where [the estate] demands production of an
overwhelming amount of contents, for example, dozens of
terabytes."
Requests for large amounts of information obviously pose cost
and inconvenience problems for service providers, and under this
bill, such requests should be rare since any request must also
be narrowly tailored to the purpose of administering the estate.
Such concerns are mitigated, however, when the requester is
willing to pay the costs of obtaining the information. In
response to concerns that the undue burden provision should not
be construed to prevent disclosure when the requester will pay
the provider's costs, the author proposes the following
amendments:
On page 4, line 13, after "burden," insert the following:
"However, a cost that the requester offers to pay pursuant
to subdivision (3) shall not be considered when a court is
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making a determination whether a request constitutes an
undue burden."
On page 4, line 20, insert the following:
"(e) 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."
ARGUMENTS IN SUPPORT: NetChoice, a trade association of
e-Commerce and online businesses based in Washington, DC, writes
in support of the bill:
We recognize the need of fiduciaries to wrap up estates
and some of the challenges fiduciaries face when it comes
to accessing electronic communications of the deceased.
At the same time we need to respect the privacy
expectations of the deceased, the privacy of those with
whom they communicated, and federal privacy law. To that
end, the PEAC Act achieves a balance for all these
concerns.
That is why the PEAC Act is supported by the online
industry and was created with input from privacy
advocates such as the ACLU, Center for Democracy and
Technology, and Electronic Frontier Foundation. Under
the PEAC Act, California would allow its citizens to
choose their afterlife privacy while allowing the
fiduciary to wrap up the estate and comply with federal
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law.
It's not just our view that AB 691 is the correct
approach. It's also what your constituents believe. The
national polling firm Zogby Analytics surveyed adults
across age, demographics, and political spectrums on this
issue. Zogby's poll found by nearly 5 to 1 that Americans
support the approach of the PEAC Act. Over 70% of
Americans say their private online communications and
photos should remain private after they die, unless they
gave prior consent for others to access. Only 15% say
that estate attorneys should control their private
communications and photos, even if they gave no prior
consent for sharing.
The PEAC Act gives users the privacy defaults they want.
Just 15% said an estate attorney should make the decision
about sharing their private communications and photos.
43% say these items should be deleted upon proof of
death. 30% say their estate could access these items only
if they gave prior consent. These results match the
approach found in the PEAC Act.
REGISTERED SUPPORT / OPPOSITION:
Support
American Online (AOL)
California Chamber of Commerce
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Civil Justice Association of California (CJAC)
Facebook
Internet Association
NetChoice
Service Employees International Union (SEIU)
State Privacy and Security Coalition, Inc.
TechAmerica
Yahoo
Opposition
None on file
Analysis Prepared by:Anthony Lew / JUD. / (916) 319-2334
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