BILL ANALYSIS Ó
AB 691
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Date of Hearing: May 5, 2015
ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION
Mike Gatto, Chair
AB 691
(Calderon) - As Amended April 30, 2015
SUBJECT: The Privacy Expectation Afterlife and Choices Act
(PEAC)
SUMMARY: Establishes the Privacy Expectation Afterlife and
Choices Act ("the Act") to establish rules for when electronic
records or content from a deceased person's account with an
electronic communication service (e.g., email provider) or
remote computing service provider (e.g., social media website)
can be disclosed to the executor or administrator of the
deceased person's estate for purposes of administering the
estate. Specifically, this bill:
1)Authorizes a probate court that has jurisdiction over the
estate of a deceased person ("user") to issue a court order to
an electronic communication service or remote computing
service ("provider") requiring the 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 specified findings of fact required 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
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the contents of communications or stored contents, 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 or persons or entities who
have registered with the provider 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
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.
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3)With respect to the contents of communications or stored
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
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) and,
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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
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
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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
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
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burden," among others.
EXISTING LAW:
1)Provides for the disposition of a testator's property by will.
(Probate Code (PC) Section 6100 et seq.)
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. (PC 6400 et seq.)
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. (PC 7000)
4)Provides that the decedent's property, including property
devised by a will, is generally subject to probate
administration, except as specified. (PC 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. Sections 2510-22)
FISCAL EFFECT: None. This bill has been keyed non-fiscal by
the Legislative Counsel.
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COMMENTS:
1)Purpose of this bill . This bill seeks to ensure that
Californians have the right to decide what happens to their
digital assets, including email, social media website content,
electronic documents, and other records held in electronic
form, after they die. This bill is author-sponsored.
2)Author's statement. According to the author, "Prior to the
digital age, the memorabilia of our lives was stored in a
cardboard box in our parent's attic or under their bed.
Today, a significant portion of the information about our
lives is kept online on our personal accounts. Whether it's
Facebook, Twitter, YouTube or even email, the digital assets
we 'own' are today's version of the photo albums, videos, and
hand-written journals of yesterday."
"Most people expect the contents of these online
communications to remain private, even after they pass away;
it's likely the recipients of those messages likely expect the
same?With no statute currently in place in California
protecting the digital assets of the newly deceased, families
are left responsible for accessing their loved ones
information, often times causing unnecessary financial and
emotional burdens' during a time that is already painfully
difficult.
"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."
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3)Giving consumers control over their personal privacy - even
after death . In the common law legal systems of the United
Kingdom and the United States, the law does not protect
privacy after death - unless there is a statute to the
contrary. According to the Restatement of Torts, "Except for
the appropriation of one's name or likeness, an action for
invasion of privacy can be maintained only by a living
individual whose privacy is invaded." (Restatement (Second)
of Torts, Section 6521(1977)) Huw Beverly-Smith, a legal
writer on the subject of post-mortem rights, summarizes the
reasoning behind the common law rule delicately: "Reputation
and injured dignity are generally of no concern to a deceased
person." (The Commercial Appropriation of Personality, Huw
Beverly-Smith, Cambridge University Press, 2002, p. 124.)
However, in today's digital world, society's expectations and
values appear to have changed. According to a recent Zogby
poll, over 70% of Americans said their private online
communications and photos should remain private after they
die, unless they gave prior consent for others to access.
Only 15% said that estate attorneys should control their
private communications and photos, even if they gave no prior
consent for sharing. (Zogby Analytics Online Survey of
Adults, Zogby Analytics, 2015, p. 45.)
Over the last two decades privacy law in California, the
United States, and other countries has seen robust
development. The trend toward more privacy rights is
undoubtedly in part a response to the increased risks of
fraud, identity theft and other crimes that are made easier by
the Internet and the massive shift away from paper and toward
electronic and online management of data. This bill proposes
to establish landmark privacy protections in an, as of yet,
uncharted territory: post-mortem privacy.
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"Post-mortem privacy" is not a recognized legal term of art,
but as one legal scholar posits, it may be termed "the right
of a person to preserve and control what becomes of his or her
reputation, dignity, integrity, secrets or memory after
death." (Protecting Post-Mortem Privacy: Reconsidering the
Privacy Interests of the Deceased in a Digital World," Lilian
Edwards and Edina Harbinja, Cardozo Arts & Entertainment Law
Journal, Vol. 32, No. 1, 2013.) This bill attempts to reflect
current societal expectations and values about these matters
after death by requiring estate executors and Internet, email
and social media providers to live by default rules that
preserve individual privacy rather than end it upon death.
4)Protection for digital records and even more protection for
digital content . Under this bill, executors and online
service providers would be required to respect the privacy
choices a person makes in their online account controls as
well as the explicit instructions a person leaves in their
will or in other written, electronic or oral expressions of a
person's intent. A provider could not release information
until the executor of a deceased person's estate obtains a
court order from the probate court, which oversees estate
administration after death. AB 691 allows the probate court
to issue an order granting access to a digital record and
other information about a digital account, but not the
contents of communications or stored contents, if the court
makes a number of findings, including that an executor's
request for access is "narrowly tailored" and demonstrates a
"good faith belief" that the scope of the request is relevant
to the process of settling the deceased person's estate.
Further, the bill specifies that a court can only issue an
order for the release of the contents of communications (or
stored contents of an online account), if the person's will -
or a choice made by the person within the product or service -
evidences the person's express consent to the disclosure of
the requested contents. The bill also gives providers the
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ability to deny a request for disclosure if the deceased
person had deleted the requested contents during their
lifetime or based on a person's user settings within the
product or service regarding what should happen with the
account after a set period of inactivity or after death.
Generally speaking, this bill establishes an "opt-in" rule for
access to digital assets after death, which means the default
rule - if a person fails to make a conscious choice - is no
post-mortem access to digital assets.
5)A competing proposal: the national model legislation . In
2014, the National Conference of Commissioners on Uniform
State Laws (NCCUSL), completed work on a piece of model
legislation, called the Fiduciary Access to Digital Assets
Act, which essentially vests fiduciaries, such as estate
executors and trustees, with the authority to access, manage
and distribute digital assets after a person's death. In a
nutshell, the NCUSSL model act establishes an "opt-out" rule
for access to digital assets after death, which means the
default rule - if a person fails to make a conscious choice
during their life - is full post-mortem access to digital
assets.
While the NCCUSL model legislation has been introduced in at
least 23 states, as of yet no state has adopted the model act.
Because the model act provides an opt-out for access and AB
691 provides an opt-in, this bill could be viewed as
significantly more protective of personal privacy rights than
the national model legislation developed by NCUSSL.
6)No distinction for digital assets with economic or historical
value . Usually a person's email or stored content on a social
media website has only sentimental or, cynically speaking,
gossip value. However, a celebrity or author's digital
assets, such as photos, emails, letters and unpublished novels
stored electronically, may represent significant economic
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value for a deceased person's estate.
This bill does not appear to distinguish between digital assets
that have economic value and those that have no economic
value, nor does the bill address the fact that certain digital
assets may have historical value and should therefore be
retained and ultimately shared. The author and the Committee
may wish to consider whether and how this bill should address
these issues.
7)Arguments in support . The Center for Democracy and Technology
(CDT) states that this bill "recognizes that digital content
is different from physical records?An individual's digital
estate might include bank accounts, photo albums, email
accounts, text messages, voicemails, social media profiles,
health and fitness data, and/or dating messages. The same
person may have different preferences for each of these
separate accounts?[this bill] creates a strong incentive for
technology companies to develop tools that capture these
preferences."
8)Double referral . This bill was double-referred to the
Assembly Judiciary Committee where it was heard on April 28,
2015, and passed on a 10-0 vote.
REGISTERED SUPPORT / OPPOSITION:
Support
American Online (AOL)
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Center for Democracy and Technology
California Hispanic Chambers of Commerce
Civil Justice Association of California (CJAC)
Facebook
Internet Association
NetChoice
Service Employees International Union (SEIU)
TechNet
Yahoo
Opposition
None on file.
Analysis Prepared by:Jennie Bretschneider / P. & C.P. / (916)
319-2200
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