BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 691 (Calderon)
Version: July 1, 2015
Hearing Date: July 14, 2015
Fiscal: No
Urgency: No
TMW
SUBJECT
The Privacy Expectation Afterlife and Choices Act (PEAC)
DESCRIPTION
This bill would establish the Privacy Expectation Afterlife and
Choices Act and authorize a probate court that has jurisdiction
of the estate of the deceased user of an electronic
communication service or remote computing service (provider) to
order the provider to disclose to the executor or administrator
of the estate or the trustee of the trust, for the purpose of
resolving issues regarding assets or liabilities of the estate:
(1) a record or other information pertaining to the account of
the deceased user that is in electronic storage with the
provider; or (2) the contents of communications or stored
contents, if the court makes specified findings of facts based
upon a sworn declaration of the personal representative or other
admissible evidence.
BACKGROUND
With the advent of the Internet in the 1970s, the World Wide Web
in 1991, and a user-friendly interface and business/consumer
transactions beginning in 1992, billions of people around the
world rely on the Internet for personal communications and
financial transactions. (The History Channel, The Invention of
the Internet, A&E Television Networks, Inc.
[as of July 3, 2015].) Also beginning in the 1970s,
individuals were beginning to utilize more computers at work,
and, because of the development of the personal computer in the
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late 1970s, individuals began using computers at home as well.
(C.N. Trueman, The Personal Computer, The History Learning Site
[as of July 3, 2015].)
By the 1980's, personal computers were becoming common in U.S.
households. In order to address privacy concerns with computer
and other digital and electronic communications, the Electronic
Communications Privacy Act of 1986 (ECPA) updated the Federal
Wiretap Act of 1968. (The Electronic Communications Privacy Act
of 1986 (ECPA), Bureau of Justice Assistance, Office of Justice
Programs, U.S. Dept. of Justice (July 30, 2013)
[as of July 3, 2015].) The ECPA has been revised over the years
by several pieces of legislation, including the Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (USA Patriot Act),
"to keep pace with the evolution of new communications
technologies and methods, including easing restrictions on law
enforcement access to stored communications in some cases. . . .
The ECPA, as amended, protects wire, oral, and electronic
communications while those communications are being made, are in
transit, and when they are stored on computers. The [ECPA]
applies to email, telephone conversations, and data stored
electronically." (Id.) The ECPA reflects a general approach of
providing greater privacy protection for materials in which
there are greater privacy interests. (Id.)
Notably, the ECPA is primarily targeted at limiting government
access to private user information. However, this federal law
applies to communications sent or received by users and
restricts all access to the records and contents of those
communications, including access by an executor, administrator,
or trustee of a deceased user. California state law provides
specified discovery procedures for parties in civil actions,
including probate actions that administer the trust or estate of
a decedent, to obtain documents that are stored electronically.
Those laws were enacted under AB 5 (Evans, Chapter 5, Statutes
of 2009), which established the Electronic Discovery Act.
However, internet service and electronic storage providers are
subject to both federal and state electronic communications
privacy laws, which may conflict when a person, other than the
user sending or storing electronic communications or the
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recipient of an electronic communication, attempts to obtain the
records or contents of the electronic records and
communications. This is problematic when the executor,
administrator, or trustee (fiduciary) of a deceased user or
recipient is tasked with marshalling the decedent's assets and
liabilities in order to administer the decedent's trust or
estate. Since many individuals are now receiving invoices and
billing in electronic form as a way to go "paperless,"
performing many financial transactions online, as well as
primarily corresponding through electronic means, obtaining the
decedent's electronic communications may be the only way for the
fiduciary to determine the assets and liabilities of the
decedent. By 2014, seven states had enacted laws to grant some
degree of access of a decedent's electronic communications to
fiduciaries.
In California, SB 849 (Anderson, 2014) would have authorized a
decedent's personal representative to request, and would have
authorized an electronic communication service or remote
computer service to provide, access to the electronic mail
account of a decedent or to copies of the content of the
account, subject to any applicable service agreement. SB 849
was held in this Committee after testimony.
In July 2014, the National Conference of Commissioners on
Uniform State Laws (NCCUSL) approved the Uniform Fiduciary
Access to Digital Assets Act (UFADAA), which was recommended for
enactment in all states "to vest fiduciaries with the authority
to access, control, or copy digital assets and accounts[,] . . .
remove barriers to a fiduciary's access to electronic
records[,] and to leave unaffected other law, such as fiduciary,
probate, trust, banking, investment, securities, and agency
law." (NCCUSL, Uniform Fiduciary Access to Digital Assets Act
(Apr. 2, 2015) [as of July 10, 2015] p. 1.)
This bill would not enact the UFADAA, but, instead, provide for
the issuance of probate court orders authorizing the disclosure
of electronic communications, as specified, to fiduciaries for
the purpose of resolving issues regarding assets or liabilities
of a decedent's estate.
CHANGES TO EXISTING LAW
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Existing law authorizes a decedent's personal representative to
take possession or control of all of the decedent's property to
be administered in the decedent's estate, and requires the
personal representative to take all steps reasonably necessary
for the management, protection, and preservation of, the estate
in his or her possession. (Prob. Code Secs. 9650(a)(1), (b).)
Existing law defines "fiduciary" to mean the decedent's personal
representative or the trustee of the decedent's trust. (Prob.
Code Sec. 16323.) Existing law defines "personal
representative" to mean the executor, administrator,
administrator with the will annexed, special administrator,
successor personal representative, public administrator, as
specified, or a person who performs substantially the same
function under the law of another jurisdiction governing the
person's status. (Prob. Code Sec. 58(a).)
Existing law provides that the personal representative has the
management and control of the estate and prescribes fiduciary
duties to the personal representative, including using ordinary
care and diligence in managing and controlling the decedent's
estate. (Prob. Code Sec. 9600.)
Existing law , if no personal representative has been appointed,
requires the public administrator of a county to take prompt
possession or control of property of a decedent in the county
that is deemed by the public administrator to be subject to
loss, injury, waste, or misappropriation, or that the court
orders into the possession or control of the public
administrator after notice to the public administrator.
(b) If property described in subdivision (a) is beyond the
ability of the public administrator to take possession or
control, the public administrator is not liable for failing to
take possession or control of the property. (Prob. Code Sec.
7601.)
Existing law requires a public administrator who is authorized
to take possession or control of property of a decedent to make
a prompt search for other property, a will, and instructions for
disposition of the decedent's remains, as specified, and
requires the public administrator to take possession or control
of any property that, in the sole discretion of the public
administrator, is deemed to be subject to loss, injury, waste,
or misappropriation and that is located anywhere in this state
or that is subject to the laws of this state. (Prob. Code Sec.
7602.)
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Existing law requires a financial institution, government or
private agency, retirement fund administrator, insurance
company, licensed securities dealer, or other person, without
the necessity of inquiring into the truth of the written
certification issued by the public administrator in order to
take possession or control of the decedent's property, without
requiring a death certificate, without charge, and without court
order or letters being issued to:
provide the public administrator complete information
concerning property held in the sole name of the decedent,
including the names and addresses of any beneficiaries;
grant the public administrator access to a safe-deposit box
rented in the sole name of the decedent for the purpose of
inspection and removal of any will or instructions for
disposition of the decedent's remains. Costs and expenses
incurred in drilling or forcing a safe-deposit box shall be
borne by the estate of the decedent; and
surrender to the public administrator any property of the
decedent that, in the sole discretion of the public
administrator, is deemed to be subject to loss, injury, waste,
or misappropriation. (Prob. Code Sec. 7603(c).)
Existing law makes the receipt of the public administrator's
written certification sufficient acquittance (document or
receipt as evidence of the discharge of a debt or obligation)
for providing information or granting access to the safe-deposit
box, for removal of the decedent's will and instructions for
disposition of the decedent's remains, and for surrendering
property of the decent and fully discharges the financial
institution, government or private agency, retirement fund
administrator, insurance company, licensed securities dealer, or
other person from any liability for any act or omission of the
public administrator with respect to the property or the
safe-deposit box. (Prob. Code Sec. 7603(d).)
Existing law requires the personal representative to file with
the court clerk an inventory of property to be administered in
the decedent's estate together with an appraisal, which must be
filed within four months after letters are first issued to a
general personal representative. However, the court may allow
such further time for filing an inventory and appraisal as is
reasonable under the circumstances of the particular case.
(Prob. Code Sec. 8800.)
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Existing law , if the personal representative acquires knowledge
of property to be administered in the decedent's estate that is
not included in a prior inventory and appraisal, requires the
personal representative to file a supplemental inventory and
appraisal of the property in the manner prescribed for an
original inventory and appraisal within four months after the
personal representative acquires knowledge of the property, and
the court may allow such further time for filing a supplemental
inventory and appraisal as is reasonable under the circumstances
of the particular case. (Prob. Code Sec. 8801.)
Existing law requires the inventory and appraisal to separately
list each item and state the fair market value of the item at
the time of the decedent's death in monetary terms opposite the
item. (Prob. Code Sec. 8802.)
Existing law , if the personal representative refuses or
negligently fails to file an inventory and appraisal within the
time allowed, upon petition of an interested person, authorizes
the court to: (1) compel the personal representative to file an
inventory and appraisal; (2) remove the personal representative
from office; and (3) impose on the personal representative
personal liability, which may include attorney's fees, for
injury to the estate or to an interested person that directly
results from the refusal or failure. (Prob. Code Sec. 8804.)
Existing law requires the account to include both a financial
statement and a report of administration, as specified, and
requires the statement of liabilities in the report of
administration to include information as to whether notice to
creditors was given, as specified, creditor claims were filed,
as specified, creditor claims were not paid, satisfied, or
adequately provided for, and whether any real or personal
property is security for a claim, whether by mortgage, deed of
trust, lien, or other encumbrance. (Prob. Code Sec. 10900.)
Existing law requires the personal representative to either
petition for an order for final distribution of the estate or
make a report of status of administration within one year after
the date of issuance of letters in an estate for which a federal
estate tax return is not required, and within 18 months after
the date of issuance of letters in an estate for which a federal
estate tax return is required. (Prob. Code Sec. 12200.)
Existing law provides that if a report of status of
administration is made, the report must show the condition of
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the estate, the reasons why the estate cannot be distributed and
closed, and an estimate of the time needed to close
administration of the estate. (Prob. Code Sec. 12201(a).) The
court is authorized to require the personal representative to
appear before the court to show the condition of the estate and
the reasons why the estate cannot be distributed and closed.
(Prob. Code Sec. 12202(a).)
Existing law regarding trust administration provides that upon
the death of a settlor, the property of the deceased settlor
that was subject to the power of revocation at the time of the
settlor's death is subject to the claims of creditors of the
deceased settlor's estate and to the expenses of administration
of the estate to the extent that the deceased settlor's estate
is inadequate to satisfy those claims and expenses. (Prob. Code
Sec. 19001(a).)
Existing law authorizes a trustee or beneficiary of a trust to
petition the court concerning the internal affairs of the trust
or to determine the existence of the trust; proceedings
concerning the internal affairs of the trust include proceedings
to determine questions of construction of a trust instrument,
the existence or nonexistence of any immunity, power, privilege,
duty, or right, determining the validity of a trust provision,
ascertaining beneficiaries and determining to whom property
shall pass or be delivered upon final or partial termination of
the trust, to the extent the determination is not made by the
trust instrument, and settling the accounts and passing upon the
acts of the trustee, including the exercise of discretionary
powers. (Prob. Code Sec. 17200.)
Existing law , the Electronic Discovery Act, provides that a
subpoena in a civil proceeding may require that electronically
stored information, as defined, be produced and that the party
serving the subpoena, or someone acting on the party's request,
be permitted to inspect, copy, test, or sample the information.
(Code Civ. Proc. Sec. 1985.8(a)(1).)
Existing law authorizes a party serving a subpoena requiring
production of electronically stored information to specify the
form or forms in which each type of information is to be
produced, and, if a person responding to a subpoena for
production of electronically stored information objects to the
specified form or forms for producing the information, the
subpoenaed person may provide an objection stating the form or
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forms in which it intends to produce each type of information.
(Code Civ. Proc. Sec. 1985.8(b), (c).)
Existing law provides that the subpoenaed person opposing the
production, inspection, copying, testing, or sampling of
electronically stored information on the basis that information
is from a source that is not reasonably accessible because of
undue burden or expense shall bear the burden of demonstrating
that the information is from a source that is not reasonably
accessible because of undue burden or expense. (Code Civ. Proc.
Sec. 1985.8(e).) If the person from whom discovery of
electronically stored information is subpoenaed establishes that
the information is from a source that is not reasonably
accessible because of undue burden or expense, the court may
nonetheless order discovery if the subpoenaing party shows good
cause, subject to specified limitations. (Code Civ. Proc. Sec.
1985.8(f).)
Existing law provides that if the court finds good cause for the
production of electronically stored information from a source
that is not reasonably accessible, the court may set conditions
for the discovery of the electronically stored information,
including allocation of the expense of discovery. (Code Civ.
Proc. Sec. 1985.8(g).) Existing law authorizes the court to
limit the frequency or extent of discovery of electronically
stored information, even from a source that is reasonably
accessible, if the court determines that any of the following
conditions exists:
it is possible to obtain the information from some other
source that is more convenient, less burdensome, or less
expensive;
the discovery sought is unreasonably cumulative or
duplicative;
the party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought; or
the likely burden or expense of the proposed discovery
outweighs the likely benefit, taking into account the amount
in controversy, the resources of the parties, the importance
of the issues in the litigation, and the importance of the
requested discovery in resolving the issues. (Code Civ. Proc.
Sec. 1985.8(i).)
Existing law provides for the subpoenaed person to notify the
subpoenaing party that electronic information produced pursuant
to a subpoena is subject to a claim of privilege or of
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protection as attorney work product. (Code Civ. Proc. Sec.
1985.8(j).) Existing law requires documents produced and
identified as privileged or protected as attorney work product
to be sequestered by the party receiving the information or
delivered to the court under seal, and a party is precluded from
using or disclosing the specified information until the claim of
privilege is resolved by the court, as specified. (Code Civ.
Proc. Sec. 2031.285.)
Existing law requires a party serving a subpoena requiring the
production of electronically stored information shall take
reasonable steps to avoid imposing undue burden or expense on a
person subject to the subpoena. (Code Civ. Proc. Sec.
1985.8(k).) An order of the court requiring compliance with a
subpoena issued under the Electronic Discovery Act protects a
person who is neither a party nor a party's officer from undue
burden or expense resulting from compliance. (Code Civ. Proc.
Sec. 1985.8(l).)
Existing law provides that if an evidentiary privilege is
claimed on the ground that the matter sought to be disclosed is
a communication made in confidence in the course of the
lawyer-client, lawyer referral service-client,
physician-patient, psychotherapist-patient, clergy-penitent,
husband-wife, sexual assault counselor-victim, domestic violence
counselor-victim, or human trafficking caseworker-victim
relationship, the communication is presumed to have been made in
confidence and the opponent of the claim of privilege has the
burden of proof to establish that the communication was not
confidential (Evid. Code Sec. 917(a).) A communication between
persons in one of these types of relationships does not lose its
privileged character for the sole reason that it is communicated
by electronic means or because persons involved in the delivery,
facilitation, or storage of electronic communication may have
access to the content of the communication. (Evid. Code Sec.
917(b).)
Existing law , absent exceptional circumstances, prohibits the
court from imposing sanctions on a subpoenaed person or any
attorney of a subpoenaed person for failure to provide
electronically stored information that has been lost, damaged,
altered, or overwritten as the result of the routine, good faith
operation of an electronic information system. (Code Civ. Proc.
Sec. 1985.8(m)(1).)
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Existing law makes document production provisions under the
Civil Discovery Act, which includes the Electronic Discovery
Act, applicable to civil actions and trial courts in which the
civil action is pending, and defines "electronic" to mean
relating to technology having electrical, digital, magnetic,
wireless, optical, electromagnetic, or similar capabilities, and
"electronically stored information" to mean information that is
stored in an electronic medium. (Code Civ. Proc. Sec.
2016.020.)
Existing federal law , the Electronic Communications Privacy Act
(ECPA), limits the disclosure by an electronic communication
service or remote computing service of electronic communication
of a user. (18 U.S.C. Sec. 2510 et seq.) The ECPA provides the
following definitions:
"electronic communication" means any transfer of signs,
signals, writing, images, sounds, data, or intelligence of any
nature transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectronic or photooptical system that
affects interstate or foreign commerce, but does not include:
o any wire or oral communication;
o any communication made through a tone-only paging
device;
o any communication from a tracking device; or
o electronic funds transfer information stored by a
financial institution in a communications system used for
the electronic storage and transfer of funds;
"user" means any person or entity who uses an electronic
communication service, and is duly authorized by the provider
of such service to engage in such use;
"electronic communications system" means any wire, radio,
electromagnetic, photooptical or photoelectronic facilities
for the transmission of wire or electronic communications, and
any computer facilities or related electronic equipment for
the electronic storage of such communications; and
"electronic communication service" means any service which
provides to users thereof the ability to send or receive wire
or electronic communications. (18 U.S.C. Sec. 2510(12)-(15).)
Existing federal law , the Stored Communications Act (SCA),
defines "remote computing service" to mean the provision to the
public of computer storage or processing services by means of an
electronic communications system. (18 U.S.C. Sec. 2711(2).)
Existing federal law prohibits a person or entity providing an
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electronic communication service to the public from knowingly
divulging to any person or entity the contents of a
communication while in electronic storage by that service, and
prohibits a person or entity providing remote computing service
to the public from knowingly divulging to any person or entity
the contents of any communication which is carried or maintained
on that service:
on behalf of, and received by means of electronic transmission
from (or created by means of computer processing of
communications received by means of electronic transmission
from), a subscriber or customer of such service; and
solely for the purpose of providing storage or computer
processing services to such subscriber or customer, if the
provider is not authorized to access the contents of any such
communications for purposes of providing any services other
than storage or computer processing. (18 U.S.C. Sec.
2702(a)(1)-(2).)
Existing federal law also prohibits a provider of remote
computing service or electronic communication service to the
public from knowingly divulging a record or other information
pertaining to a subscriber or customer of such service (not
including the contents of communications) to any governmental
entity. (18 U.S.C. Sec. 2702(a)(3).)
Existing federal law authorizes disclosure of the content of
electronic communications as follows:
to an addressee or intended recipient of such communication or
an agent of such addressee or intended recipient;
as otherwise authorized under EPCA or the SCA;
with the lawful consent of the originator or an addressee or
intended recipient of such communication, or the subscriber in
the case of remote computing service;
to a person employed or authorized or whose facilities are
used to forward such communication to its destination;
as may be necessarily incident to the rendition of the service
or to the protection of the rights or property of the provider
of that service;
to the National Center for Missing and Exploited Children, in
connection with a report submitted, as specified;
to a law enforcement agency, as specified; or
to a governmental entity, if the provider, in good faith,
believes that an emergency involving danger of death or
serious physical injury to any person requires disclosure
without delay of communications relating to the emergency.
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(18 U.S.C. Sec. 2702(b).)
Existing law authorizes disclosure of a record or other
information pertaining to a subscriber or customer of an
electronic communication service or remote computing service
(not including the contents of communications):
as otherwise authorized;
with the lawful consent of the customer or subscriber;
as may be necessarily incident to the rendition of the service
or to the protection of the rights or property of the provider
of that service;
to a governmental entity, if the provider, in good faith,
believes that an emergency involving danger of death or
serious physical injury to any person requires disclosure
without delay of information relating to the emergency;
to the National Center for Missing and Exploited Children, in
connection with a report submitted, as specified; or
to any person other than a governmental entity. (18 U.S.C.
Sec. 2702(c).)
This bill would establish the Privacy Expectation Afterlife and
Choice Act, and authorize a probate court that has jurisdiction
of the estate of the deceased user to 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:
the user is deceased;
the deceased user was the subscriber to or customer of the
provider;
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;
there are no other owners of, or persons or entities who have
registered with the provider with respect to, the deceased
user's account;
disclosure is not in violation of another applicable federal
or state law;
the request for disclosure is narrowly tailored to the purpose
of administering the estate;
the executor, administrator, or trustee demonstrates a good
faith belief that the information requested is relevant to
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resolve issues regarding assets or liabilities of the estate;
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; and
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.
This bill would authorize a probate court that has jurisdiction
of the estate of the deceased user to 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; and
(2) the findings required above for an order directing the
provider to disclose a record or other information.
This bill , except as otherwise provided, would require a
provider to 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; and (3) an order of the probate court with
jurisdiction over the estate or trust of the deceased that
includes all of the findings required for an order directing a
provider to disclose the contents of electronically stored
communications.
This bill would authorize a provider to 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
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that is narrowly tailored to the purpose of administering the
estate or trust; (2) a copy of the death certificate of the
deceased user; and (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.
This bill would authorize an electronic service provider to
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 listed
above required for voluntary disclosure by the provider of a
record or other information; and (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.
This bill would provide immunity from liability to a provider
that discloses records or contents as required by this bill.
This bill would authorize a provider served with an order
compelling disclosure of deceased user records or contents to
make a motion to quash or modify the order within a reasonable
time after receiving the order. This bill would require the
court to do any of the following:
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, as specified, shall not
be considered when a court is making a determination whether
the request constitutes an undue burden;
quash the order if any of the applicable requirements for an
order to disclose a record or information or for contents of
electronically stored communications are not met; or
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 to not compel the
provider to disclose the record, information, or contents
apply.
This bill would authorize 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
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those records are not already available for production during
the ordinary course of business.
This bill would not require a provider to be compelled to
disclose a record or the contents of communications if any of
the following apply:
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;
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; or
disclosure would violate other applicable law, including, but
not limited to, electronic communications privacy provisions
or copyright law.
This bill would subject the disclosure of the contents of the
deceased user's account to the executor or administrator of the
estate or the trustee of the trust to the same license,
restrictions, terms of service, and legal obligations, including
copyright law, that applied to the deceased user.
This bill would not require a provider to permit a requesting
party to assume control of a deceased user's account.
This bill would provide immunity from liability to a provider
who complies in good faith with a court order issued under this
bill.
This bill would provide the following definitions:
"asset" means anything of financial value that is part of the
estate of the decedent;
"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;
"contents" means information concerning the substance,
purport, or meaning of communications and includes the subject
line of the communication;
"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,
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electromagnetic, or photooptical system that affects
interstate or foreign commerce; "electronic communication"
would not include any of the following:
o wire or oral communication;
o communication made through a tone-only paging device;
o communication from a tracking device; or
o electronic funds transfer information stored by a
financial institution in a communication system used for
the electronic storage and transfer of funds;
"electronic communication service" means a service that
provides to users the ability to send or receive wire or
electronic communication;
"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;
"provider" means an electronic communication service or
remote computing service;
"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;
"remote computing service" means providing computer storage or
processing services to the public by means of an electronic
communications system; and
"undue burden" shall be interpreted consistently with the
interpretation of that term as used under the Civil Discovery
Act.
COMMENT
1. Stated need for the bill
The author writes:
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 information
stored online are today's version of the photo albums, videos,
AB 691 (Calderon)
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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.
According to a recent Zogby poll, over 70 [percent] 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 [percent] say that
estate attorneys should control their private communications
and photos, even if they gave no prior consent for sharing.
With no statute currently in place in California protecting
the online information 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.
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2. Scope of this bill limited to copies of documents, not access
to or control of account
With the explosion of the various uses of the Internet,
including electronic communication through email, social media
Internet Web sites, blogs, and electronic media purchases
through such Internet Web sites as iTunes and Amazon.com,
questions regarding ownership and access to those "digital
assets" upon death or incapacity are becoming more common.
According to the National Conference of Commissions on Uniform
State Laws (NCCUSL), these digital assets, which range from
online gaming items to photos, to digital music, to clients,
have real value: American consumers valued their digital
assets, on average, at almost $55,000. (NCCUSL, Draft of
Fiduciary Access to Digital Assets Act (Apr. 10, 2014), p. 1,
citing Green, Passing Down Digital Assets, Wall Street Journal
(Aug. 31, 2012) [as of July 4, 2015].) The ability of a personal
representative to gain access or control over those digital
assets is unclear and is subject to both federal privacy and
computer "hacking" laws as well as state probate law.
Complicating these issues are the terms of service agreements
that most Internet service providers and Internet Web sites
require their users to agree to in order to use these services
and sites. For example, Yahoo's terms of service provide that
the user's account is non-transferable and any rights to user's
Yahoo ID or contents within the account terminate upon the
user's death. (Yahoo!, Options available when a Yahoo account
owner passes away [as
of July 4, 2015].) On the other hand, Microsoft provides a
"Next of Kin" process that allows the content, including all
emails and attachments thereto, in the users Outlook account to
be released to the user's next of kin following an
authentication process, after which the account contents are
released by way of a data DVD shipped to the next of kin.
(Microsoft, Next of Kin Process for Outlook.com [as of July 4, 2015].)
As the author points out, recent polls show that individuals
want their private online communications and photographs to
remain private after they die, unless they have provided consent
for someone else to access this content. Online content posted
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or transmitted by Internet users raises a host of legal issues,
including user ownership of digital assets and privacy
protection for Internet users. When someone dies, three
particular issues rise to the surface - access to the deceased
user's (decedent) electronic communications and digital assets,
control of the decedent's electronic communications, online
financial accounts and digital assets, and disclosure by the
providers of electronic communication and remote computing
services (providers) of the decedent's online content. This
bill only seeks to provide instruction on disclosure by
providers for the purpose of ascertaining the decedent's assets
and liabilities.
At least nine states have enacted statutes over the past several
years to attempt to address these issues. Additionally, the
Uniform Fiduciary Access to Digital Assets Act (UFADAA) has been
approved and recommended for use in all states to address issues
of estate executor, administrator, or trustee access, control,
and ability to obtain copies of electronic documents stored by
the providers. In California, SB 849 (Anderson, 2014) attempted
to provide a personal representative access to a decedent's
electronic mail account, as well as access to copies of the
content of the account, subject to the applicable terms of
service agreement. When SB 849 was reviewed by this Committee,
the complex issues of digital assets were considered, including
what is a digital asset, and how can the decedent's fiduciary
marshal all of the decedent's assets when the types of digital
assets continues to expand and there is no comprehensive
definition as to what may be considered a digital asset (i.e.,
original emails, bitcoin, credits purchased on Facebook, blog
content, digital music, etc.).
Although the author asserts this bill is necessary to protect
the online content of newly deceased users, the scope of this
bill is limited and only applies to electronic information being
requested from providers by a decedent's administrator,
executor, or trustee in order to marshal the decedent's assets
and ascertain the liabilities. As such, this bill differs from
SB 849 in that it would not provide the decedent's fiduciary
access to the user's online accounts; rather, this bill provides
a new process for the fiduciary to request the production of
documents from providers. Further, this bill would not
authorize the decedent's fiduciary to obtain control over those
accounts or the underlying asset or liability.
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3. Ambiguities in federal law create the problem this bill
attempts to address
Proponents assert that providers need clarification as to what
kind and how much information may be disclosed to individuals
other than the user. Proponents also argue that federal law
prohibits disclosure of certain electronic information and state
laws either conflict with federal law or are silent on the
mechanisms to be followed by estate administrators, executors,
and trustees when seeking electronic communications from
providers to administer the decedent's estate.
Under federal law, the Electronic Communications Protection Act
(ECPA) and the Stored Communications Act (SCA) prohibit
providers from knowingly divulging to any person or entity the
contents of an electronic communication. (18 U.S.C. Sec.
2702(a).) However, providers may disclose the contents of
electronic communications to an addressee or intended recipient
of the communication or an agent of such address or intended
recipient. (18 U.S.C. Sec. 270 (b)(1).) Yet, the SCA fails to
provide a definition of "agent," so it is ambiguous as to
whether a fiduciary of a deceased user could lawfully obtain the
contents of the communications. Further, this provision only
authorizes the agent of the intended addressee or recipient of
the communication to receive the content of the communication,
and excludes the agent of the sender of the communication. The
originator, subscriber, address, or intended recipient may
consent to the disclosure. (18 U.S.C. Sec. 2702(b)(3).) It is
important to note that because the SCA fails to provide for
disclosure of electronic communications to a fiduciary of either
the originator or the recipient of the communication, the
drafters of the SCA appear to have intended these privacy
protections to only apply to living users and recipients.
Notably, common law provides that an action for invasion of
privacy cannot be maintained after the death of the individual
whose privacy is invaded. (Restat. 2d Torts Sec. 652I cmt. b
(1977).) Further, after the user dies, the fiduciary is
responsible for making any privacy or copyright claims on behalf
of the estate of the decedent. As this bill only involves
release of electronic documents from the provider, in compliance
with the law, to the executor, as necessary for the executor to
perform his or her duties to the decedent's estate, there is no
likelihood that the executor would file an invasion of privacy
claim against himself or herself, for receiving copies of the
electronic communications, or the provider, for having released
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copies the electronic communications. As such, the proponents'
argument that this bill is aimed at protecting the deceased
user's privacy is illogical.
However, privacy protection for a living third-party mentioned
in, sending, or receiving the electronic communications is a
concern, that is not properly addressed in this bill, and, as
discussed further in Comment 6 below, suggests that the complex
privacy, probate, and judicial review of electronic
communication issues may be better served through a thorough
research, study, and vetting process performed by the California
Law Revision Commission (CLRC).
4. Burden on the courts, fiduciaries, creditors, and estate
heirs and trust beneficiaries
Existing law authorizes a decedent's personal representative
(which may be an executor, trustee, administrator, administrator
with the will annexed, special administrator, successor personal
representative, or public administrator) to take possession and
control of the decedent's property to be administered in the
estate. (Prob. Code Sec. 9600.) Ordinarily, in order to
determine the extent and contents of the decedent's assets and
ascertain the decedent's debts, the personal representative
would submit civil discovery to third parties, such as banks and
email providers, to determine whether the decedent maintained
any accounts with these third parties. The Civil Discovery Act
and the Electronic Discovery Act provide the statutory
processes, requirements, and limitations on the requests for
production of documents, which includes electronically stored
information, to assist the fiduciary in this effort. (Code Civ.
Proc. Secs. 1985.8, 2016.010 et seq.)
The author argues this bill is necessary to help families who
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. Yet, this
bill would create two new judicial procedures for the personal
representative or trustee (fiduciary) to follow in order to
obtain information about the decedent's estate, which would
delay the estate administration and require the expenditure of
estate assets in order to comply.
a. Obtaining a "catalog" of the user's electronic
communications
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The first step under this bill would require the fiduciary to
file with the probate court a request for disclosure from a
provider of a record or other information pertaining to the
decedent's account that is in electronic storage with the
provider. The records or other information would not contain
contents of the electronic communications, but rather would
provide a catalog of the electronic communications, such as
listing the to, from, date, and reference line from an email.
Unfortunately, since many people maintain their financial
records and bills online, the personal representative, who may
be the public administrator appointed to administer the
decedent's estate because the decedent had no will and no
individual willing or able to administer the decedent's
estate, would not know the exact provider used by the
decedent. A manual used by the United States Department of
Justice and federal prosecutors for instruction on obtaining
electronic evidence in criminal cases demonstrates how the
process of identifying the providers from whom to seek the
electronic communications is itself burdensome:
Agents and prosecutors must apply the various
classifications devised by the SCA's drafters to the facts
of each case to figure out the proper procedure for
obtaining the information sought. First, they must
classify the network service provider (e.g., does the
provider provide "electronic communication service,"
"remote computing service," or neither). Next, they must
classify the information sought (e.g., is the information
content "in electronic storage," content held by a remote
computing service, a non-content record pertaining to a
subscriber, or other information enumerated by the SCA).
Third, they must consider whether they are seeking to
compel disclosure or seeking to accept information
disclosed voluntarily by the provider. If they seek
compelled disclosure, they need to determine whether they
need a search warrant, a 2703(d) court order, or a subpoena
to compel the disclosure. If they are seeking to accept
information voluntarily disclosed, they must determine
whether the statute permits the disclosure. (Computer
Crime and Intellectual Property Section Criminal Division,
U.S. Dept. of Justice, Searching and Seizing Computers and
Obtaining Electronic Evidence in Criminal Investigations
(2009) Office of Legal Education, Executive Office for
United States Attorneys
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Page 23 of ?
[as of July 4, 2015] p.
115.)
Under this bill, after the personal representative has
determined the appropriate classifications of providers from
whom the electronic documents are sought, the personal
representative would have to file for an order to request
disclosure by the provider of the electronically stored record
or information. Yet, this bill would require a court to find,
among other things, that the deceased user was the subscriber
to or customer of that provider. Since the decedent's emails
are inaccessible because they are most likely password
protected, it is uncertain how the personal representative
would establish which of the electronic communications and
remote computing services the decedent actually used,
especially when the personal representative is the public
administrator, who was not personally acquainted with the
decedent and had not received an email from the decedent, with
the decedent's email address that could be used to identify
the electronic communications provider. Even if the personal
representative managed to locate the correct provider from
whom to request the decedent's information, the record
produced by the provider would merely be a catalog of the
emails sent from and received by the decedent - the contents
of the emails would have to be requested through a separate
process provided under this bill.
Further, the personal representative would have to prove to
the court:
the account with the provider belonged to the decedent,
which may also be impossible to assert because the personal
representative may not know which provider with whom the
decedent had an account;
sufficient information that would allow the provider to
identify the decedent's account, even though the court may
not know what information the provider would need to
identify the decedent's account;
there are no other owners of, or persons or entities who
have registered with the provider with respect to the
decedent's account, yet, without the electronic
communications themselves, it is uncertain how the personal
representative would know about other owners of the
account; and
that the request for disclosure is not in conflict with
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the decedent's expression of intent regarding access to the
information, even though this bill does not authorize
access to the account.
Proponents argue that this bill would provide clarity to
fiduciaries on how to request electronic documents from
providers, especially an estate administrator or executor who
is a layperson unfamiliar with the legal process. Given the
extensive explanation provided to federal prosecutors on the
legal requirements of obtaining electronic communications
under the SCA, plus the additional judicial processes provided
in this bill, it is unclear how a layperson could navigate the
requirements of this bill.
Notably, the decedent's personal representative is required by
law to file with the court clerk an inventory of property to
be administered in the decedent's estate together with an
appraisal, which must be filed within four months after
letters are first issued to a general personal representative.
(Prob. Code Sec. 8800 et seq.) However, this bill sets up a
complex procedure through which the personal representative
would have to navigate in order to determine the inventory of
the property to be administered if the decedent owned digital
or other assets documented in electronic records. Given the
burden on probate courts due to budgetary and staffing
constraints, hearings on petitions have been significantly
delayed, and this bill would create another petition or
request form (the bill is unclear what document the personal
representative would file with the court to seek an order)
that the court would have to adjudicate. Further, the
administration of the estate would be significantly delayed,
and delay distribution of estate assets or payments to heirs
or creditors, due to the complex procedure this bill would
create.
Incidentally, this bill would require a court order for the
personal representative to obtain a catalog of electronic
communications, even though the SCA authorizes voluntary
disclosure of records or other information, other than the
contents, by the provider to any person other than a
government entity. (18 U.S.C. 2702(c)(6).) Accordingly, it
is unclear why this bill is necessary to create unique
document production requirements aimed at information the
personal representative can already obtain, subject to the
requirements of California's existing Civil Discovery and
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Electronic Discovery Acts.
a. Obtaining contents of electronic communications
This bill would establish a judicial process under which a
fiduciary would be able to obtain copies of the contents of
the decedent's electronic communications. The fiduciary would
have to request from the court an order requiring the provider
to produce the contents of the electronic communications, and
prove to the court all of the information required to be
proven for electronic communication catalogs, as well as
providing the will or trust authorizes a provider to disclose
the contents of the decedent's electronic communications, or
proving the consent of the decedent for the personal
representative to obtain the contents. This process creates a
second procedure for the judiciary review and expense of court
resources, as well as further delaying the administration of
the estate.
A better method for a fiduciary to obtain the contents of the
decedent's electronic communications is provided by Indiana
and was enacted in 2007. Under the Indiana statute, the
custodian of records (provider) is required to provide the
personal representative of the decedent's estate access to or
copies of any documents or information of the decedent stored
electronically by the custodian upon receipt by the custodian
of a request for access or copies, accompanied by a copy of
the death certificate and a certified copy of the letters
testamentary appointing the personal representative for the
estate, or an order of a court having probate jurisdiction of
the decedent's estate. (Burns Ind. Code Ann. Sec.
29-1-13-1.1(b).) Notably, a search of cases involving a
federal ECPA or SCA preemption claim prohibiting disclosure
without the deceased user's consent revealed no cases on
record. If this bill was amended to utilize Indiana's
electronic document production process, the bill would provide
a better balance between the fiduciary's legal duties to
timely file an account of the decedent's assets, with the
provider's desire to protect itself from inappropriate
disclosure of the decedent's electronic communications.
5. Disclosure limitations regarding licensing, terms of use
agreements, and copyright law
This bill would subject the disclosure by the provider of
AB 691 (Calderon)
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contents of the deceased user's account to the fiduciary to the
same license, restrictions, terms of service, and legal
obligations, including copyright law, that applied to the
deceased user. As discussed under Comment 2, provider terms of
service agreements establish varying degrees of release of
account content. Some providers state that upon the user's
death, the account contents are non-transferrable, while others
provide some degree of content disclosure to family of the
deceased user. Accordingly, establishing a disclosure
limitation that relies on the varying degrees of disclosure for
each provider further limits the fiduciary's ability to marshal
the assets and determine liabilities of the estate. Although
UFADAA and other state laws are incorporating the terms of
service limitation, those provisions also include the ability to
access the user's accounts, which this bill does not do.
Accordingly, this terms-of-service limitation on disclosure is
arguably unnecessary.
This bill would also authorize the disclosure of the decedent's
electronic communications to a fiduciary, subject to all
copyright laws. Although UFADAA contains a similar copyright
clause, UFADAA, in addition to providing for obtaining copies of
electronic communications, provides for the fiduciary to access
the deceased user's account. However, this bill does not grant
the fiduciary access to the decedent's original emails or the
ability to publish or distribute the decedent's electronic
communications; this bill only authorizes the release of copies
of the decedent's electronic communications to the fiduciary for
the limited purpose of determining assets and liabilities of the
decedent. Further, even if the fiduciary published the
information, the decedent's estate would be the owner of the
copyright. If the information received was an original work of
another person, that person would have a claim against the
fiduciary, personally, or the estate, depending upon whether the
fiduciary claimed the benefit or whether the benefit went to the
decedent's estate, for publishing the information. The
provider, on the other hand, would be complying with state law
when producing documents requested by the administrator, so an
action against the provider would be tenuous, at best. As such,
the copyright disclaimer contained in this bill is arguably
unnecessary.
6. Additional concerns
SB 849 (Anderson, 2014) would have authorized the decedent's
AB 691 (Calderon)
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personal representative to request access to the electronic mail
account of the decedent by providing, among other things, to the
account service provider an order of the probate court
designating the executor or administrator as an agent for the
subscriber, as defined under ECPA, and required the estate to
first indemnify the electronic communication service or remote
computing service provider from all liability in complying with
the order. SB 849 failed passage in Committee because it only
addressed access to the decedent's electronic mail account and
relied on definitions provided under federal law, rather than
resolving the larger issues of defining "digital assets" or how
state law should properly provide the decedent's personal
representative with access to and control over digital music
collections, social media content posted by the decedent, blogs,
or other electronic assets that are continually created as
Internet Web site services evolve. Additionally, concern was
raised about the rights of a person's fiduciary, the category of
fiduciary included (i.e., personal representative, conservator,
trustee), and whether the person's incapacity should be
included, are among the general concerns raised when enacting
this type of legislation.
At the time SB 849 was heard in Committee, NCCUSL was finalizing
the Uniform Fiduciary Access to Digital Assets Act, which
proposes to address in a comprehensive manner these and related
issues. It was suggested that the uniform act may provide
more consistent and predictable standards, more fully address
the many issues related to email as well as to social media
accounts, and afford the opportunity to consider how those
provisions might apply not only to administrators of estates of
decedents, but also to trustees, conservators, and
attorneys-in-fact under powers of attorney. Another alternative
raised was to request that CLRC study fiduciary access to
digital assets, which would properly determine the interplay
between federal digital assets laws and California's probate
scheme in order to craft appropriate legislation for the needs
of California's residents.
According to the author, "[i]n 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. AB 691 is a narrower version [of] the
NCCUSL model legislation since it only deals with electronic
communications stored online, as well as having an opt-in rule.
AB 691 (Calderon)
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By having a narrowed approach, AB 691 focuses on updating law,
addressing a portion of online interaction that has, up to this
point, been silent on the responsibilities of the parties
involved when in probate. Providing such clarity can help
families, as well as other parties involved, in determining what
to do with the personal information and communications of the
decedent that is stored online."
Although this bill would not authorize access to the decedent's
electronic mail account as in SB 849, but rather authorize the
provider to disclose electronic communications, this bill is
arguably more complex than SB 849 because, as discussed in
Comment 4, it would require the fiduciary to navigate two
different judicial procedures in order to obtain the amount of
information that SB 849 would have provided. Additionally, this
bill would use the definition of "undue burden" as provided
under the Civil Discovery Act, yet the showing of an undue
burden on the provider is significantly different than the
showing required under the Civil Discovery Act and is weighted
in favor of the provider, rather than the fiduciary attempting
to perform his or her duties as required under the Probate Code.
The undue burden standard is another example of why it may be
more appropriate for the CLRC to study and promulgate an
appropriate solution to digital assets, electronic
communications, and discovery procedures for the benefit of
fiduciaries, courts, and providers.
Support : AOL; California Chamber of Commerce; Civil Justice
Association of California; Internet Association; Mental Health
America of California; State Privacy and Security Coalition,
Inc.; Yahoo
Opposition : None Known
HISTORY
Source : Facebook; TechNet
Related Pending Legislation : None Known
Prior Legislation :
SB 849 (Anderson, 2014) See Background; Comments 2, 6.
AB 691 (Calderon)
Page 29 of ?
AB 5 (Evans, Chapter 5, Statutes of 2009) See Background.
Prior Vote :
Assembly Floor (Ayes 79, Noes 0)
Assembly Privacy and Consumer Protection Committee (Ayes 11,
Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
**************