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
SENATE JUDICIARY COMMITTEE: 7-0, 9/10/15 (pursuant to Senate
Rule 29.10)
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
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:
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) 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.
AB 691
Page 4
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
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,
AB 691
Page 5
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.
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[,] . . .
AB 691
Page 6
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.)
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)
AB 691
Page 7
Facebook (co-source)
Technet (co-source)
AOL
California Chamber of Commerce
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
AB 691
Page 8
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.
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
9/10/15 23:08:55
**** END ****