BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 691|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
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THIRD READING
Bill No: AB 691
Author: Calderon (D), et al.
Amended: 7/1/15 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE: 6-0, 7/14/15
AYES: Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski
NO VOTE RECORDED: Jackson
ASSEMBLY FLOOR: 79-0, 5/11/15 - See last page for vote
SUBJECT: The Privacy Expectation Afterlife and Choices Act
SOURCE: Facebook
TechNet
DIGEST: This bill establishes the Privacy Expectation
Afterlife and Choices Act and authorizes 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.
ANALYSIS:
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Existing law:
1) Authorizes a decedent's personal representative or the
public administrator 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.
2) 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.
3) 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.
4) 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.
5) 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.
6) Provides that if a report of status of administration is
made, the report must show the condition of the estate, the
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reasons why the estate cannot be distributed and closed, and
an estimate of the time needed to close administration of the
estate, and authorizes the court 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.
7) Provides, under the Electronic Discovery Act (EDA), 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.
8) 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 forms in
which it intends to produce each type of information.
9) 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.
10)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.
11)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
specified conditions.
12)Provides for the subpoenaed person to notify the subpoenaing
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party that electronic information produced pursuant to a
subpoena is subject to a claim of privilege or of protection
as attorney work product, and 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.
13)Requires a party serving a subpoena requiring the production
of electronically stored information to take reasonable steps
to avoid imposing undue burden or expense on a person subject
to the subpoena, and an order of the court requiring
compliance with a subpoena issued under the EDA protects a
person who is neither a party nor a party's officer from
undue burden or expense resulting from compliance.
14)Provides for specified evidentiary privileges.
15)Makes document production provisions under the Civil
Discovery Act, which includes the EDA, 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.
16)Limits, under the Electronic Communications Privacy Act
(ECPA), the disclosure by an electronic communication service
or remote computing service of electronic communication of a
user, and provides definitions for "electronic
communication," "user," electronic communications system,"
and "electronic communication service."
17)Prohibits a person or entity providing an 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:
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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.
1) 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.
2) 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 Stored
Communication Act;
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
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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.
1) 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), including to any
person other than a governmental entity.
This bill:
1) Establishes the Privacy Expectation Afterlife and Choice
Act, and authorizes 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;
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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 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.
1) Authorizes 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: (a) 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 (b) the findings required above for
an order directing the provider to disclose a record or other
information.
2) Subjects 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,
and does not require a provider to permit a requesting party
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to assume control of a deceased user's account.
Background
In order to address privacy concerns with computer and other
digital and electronic communications, 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).) 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.
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 the Senate Judiciary 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
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law." (NCCUSL, Uniform Fiduciary Access to Digital Assets Act
(Apr. 2, 2015) p. 1.) This bill does not enact the UFADAA, but,
instead, provides 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.
Comments
The author writes, "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."
Prior Legislation
SB 849 (Anderson, 2014) See Background.
AB 5 (Evans, Chapter 5, Statutes of 2009) See Background.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified7/16/15)
Technet (co-source)
Facebook (co-source)
AOL
California Chamber of Commerce
California State Council of the Service Employees International
Union
Civil Justice Association of California
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Internet Association
Mental Health America of California
State Privacy and Security Coalition, Inc.
Yahoo
OPPOSITION: (Verified7/16/15)
None received
ASSEMBLY FLOOR: 79-0, 5/11/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,
Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle,
Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,
Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder,
Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina,
Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen,
Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez,
Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting,
Wagner, Waldron, Weber, Wilk, Williams, Wood
NO VOTE RECORDED: Atkins
Prepared by:Tara Welch / JUD. / (916) 651-4113
8/13/15 13:24:50
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