BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 691| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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: AB 691 Page 2 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 AB 691 Page 3 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 AB 691 Page 4 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: AB 691 Page 5 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 AB 691 Page 6 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; AB 691 Page 7 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 AB 691 Page 8 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 AB 691 Page 9 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 AB 691 Page 10 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 **** END ****