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  ****