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: 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 AB 691 Page 2 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 AB 691 Page 3 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 AB 691 Page 4 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. AB 691 Page 5 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.) AB 691 Page 6 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 AB 691 Page 7 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. AB 691 Page 8 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 **** END ****