BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                        AB 691|
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                                   THIRD READING 


          Bill No:  AB 691
          Author:   Calderon (D), et al.
          Amended:  9/4/15 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 provides procedures for the  
          disclosure of electronic communication records, information, or  
          contents, as specified, of a deceased user of an electronic  
          communication service or remote computing service (provider).  

          Senate Floor Amendments of 9/4/15 restructure the bill and  
          modify the disclosure processes.

          ANALYSIS: 
          
          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  








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             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  
             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  







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             be distributed and closed.

           7) Establishes, under the Electronic Discovery Act (EDA),  
             procedures, evidentiary privileges, and judicial review for  
             the request and production of electronically stored  
             information, as defined.

           8) 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."

           9) 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:

                 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) Authorizes disclosure of the content of electronic  
             communications 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.

           2) 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  







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             person other than a governmental entity.

          This bill:

           1) Establishes the Privacy Expectation Afterlife and Choices  
             Act, and provides for the voluntary disclosure of electronic  
             records, information, or contents of electronic  
             communications by a provider to the personal representative  
             of the estate or the trustee of the trust of a deceased user,  
             as specified.

           2) Authorizes the provider to decline to respond to a request  
             because of a concern that complying with the request may  
             violate any other legal authority, be contrary to the wishes  
             of the user, or be otherwise inappropriate.

           3) Authorizes a probate court that has jurisdiction of the  
             estate or trust of the deceased user to order a provider to  
             disclose to the personal representative or trustee a record,  
             information, or contents of an electronic communication if  
             the court makes specified findings of fact based on a sworn  
             declaration, indicating the good faith belief and efforts of  
             the personal representative or trustee, or any other  
             admissible evidence. 

           4) Creates a procedure, as specified, if no probate proceeding  
             has been opened, authorizing a personal representative or  
             trustee to file a verified petition seeking an order  
             compelling the provider to provide the requested records,  
             information, or contents of communications or stored  
             contents, and requires the personal representative or trustee  
             to file the petition in the superior court of the county  
             agreed to by the user in the terms of service agreement or,  
             in the absence of that agreement, the county in which the  
             deceased user resided at death.

           5) 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  
             to assume control of a deceased user's account.








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          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).)  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.  [ECPA] applies to email,  
          telephone conversations, and data stored electronically."  (Id.)  
           ECPA reflects a general approach of providing greater privacy  
          protection for materials in which there are greater privacy  
          interests.  (Id.)  Notably, 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 EDA.

          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  
          law."  (NCCUSL, Uniform Fiduciary Access to Digital Assets Act  
          (Apr. 2, 2015) p. 1.)  







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          UFADAA was recently revised this past July, and is now supported  
          by technology stakeholders.  This bill does not enact the  
          revised UFADAA, but, instead, provides for the disclosure of  
          electronic communications, as specified, by providers to  
          personal representatives or trustees of deceased users for the  
          purpose of administering the deceased user's estate or trust and  
          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:   (Verified9/4/15)


          Facebook (co-source)
          Technet (co-source)
          AOL
          California Chamber of Commerce







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          California Hispanic Chambers of Commerce
          California State Council of the Service Employees International  
          Union
          Civil Justice Association of California
          Internet Association
          Mental Health America of California
          State Privacy and Security Coalition, Inc.
          Yahoo


          OPPOSITION:   (Verified9/4/15)


          California Bankers Association


          ARGUMENTS IN SUPPORT:     Supporters argue that this bill is a  
          narrower version of the original version of UFADAA since it only  
          deals with electronic communications stored online, as well as  
          having an opt-in rule.  Supporters contend that by having a  
          narrowed approach, this bill 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.  Further, supporters state that 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.


          ARGUMENTS IN OPPOSITION:     Opponents argue that, although  
          there have been conversations and negotiations with the sponsors  
          over the past months, a consensus approach to the issues to be  
          resolved by the bill has not been reached.  The opposition notes  
          that the alternative approach to this bill, the revised UFADAA,  
          at a minimum, includes important definitions that ought to be  
          adopted in statute, and, if there is a disagreement over some of  
          the basic elements, or distinctions in terms between the states,  
          the ability to comply with this bill will be frustrated to the  
          detriment of beneficiaries.  Opponents recommend withholding  
          passage of this bill this year with a commitment to working  
          through the interim because the underlying public policy is too  
          important to rush since the result impacts privacy rights and  
          the rights of beneficiaries.








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          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
          9/8/15 17:30:02


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