BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 691|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
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THIRD READING
Bill No: AB 691
Author: Calderon (D), et al.
Amended: 6/14/16 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
SENATE JUDICIARY COMMITTEE: 6-0, 5/3/16 (pursuant to Senate
Rule 29.10)
AYES: Jackson, Moorlach, Anderson, Leno, Monning, Wieckowski
NO VOTE RECORDED: Hertzberg
ASSEMBLY FLOOR: 79-0, 5/11/15 - See last page for vote
SUBJECT: Revised Uniform Fiduciary Access to Digital Assets
Act
SOURCE: Author
DIGEST: This bill establishes a modified version of the
Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA)
and establishes procedures for a decedent's personal
representative or trustee to obtain digital assets and
electronic information from the custodian of those assets and
information.
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Senate Floor Amendments of 6/14/16 provide that a user's
direction (regarding disclosure of his or her digital assets,
including the content of electronic communications) through an
on-line tool overrides a contrary provision in a
terms-of-service agreement; provide that a user's direction
(regarding disclosure of his or her digital assets, including
the content of electronic communications) in a will, trust,
power of attorney, or other record overrides a contrary
provision in a terms-of-service agreement; provide that nothing
in this Act requires a custodian to share passwords or decrypt
protected devices; remove a provision that would have required
that in applying and construing this Act, consideration would
have been given to the need to promote uniformity of the law
with respect to its subject matter among states that enact
similar acts; and make nonsubstantive conforming changes.
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
estate, and requires the personal representative to take all
steps reasonably necessary for the management, protection,
and preservation of, the estate in his/her possession.
2) Provides that the personal representative has the management
and control of the estate and prescribes fiduciary duties to
the personal representative.
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.
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
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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
be distributed and closed.
7) Establishes, under the Electronic Discovery Act, 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:
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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
person other than a governmental entity.
This bill:
1) Establishes the RUFADAA and authorizes a decedent's personal
representative or trustee (fiduciary) to access and manage
digital assets and electronic communications, as specified.
2) Authorizes a person to use an online tool to give directions
to the custodian of his/her digital assets regarding the
disclosure of those assets.
3) Specifies that, if a person has not used an online tool to
give that direction, he or she may give direction regarding
the disclosure of digital assets in a will, trust, power of
attorney, or other record.
4) Requires a custodian, as specified, of the digital assets to
comply with a fiduciary's request for disclosure of digital
assets to terminate an account, except under certain
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circumstances, including when the decedent has prohibited
this disclosure using the online tool.
5) Specifies that a user's direction through the online tool or
testamentary document would override a contrary provision in
a terms-of-service agreement.
6) Provides that a fiduciary's or designated recipient's access
to digital assets may be modified or eliminated by a user, by
federal law, or by a terms-of-service agreement unless the
terms of service agreement is contrary to the user's
direction in an online tool or the user's direction in a
testamentary device;.
7) Authorizes the custodian, in its sole discretion, only if
consistent with the user's designation in the online tool or
in the user's testamentary document, to do any of the
following when disclosing the digital assets of a user:
Grant the fiduciary or designated recipient full
access to the user's account;
Grant the fiduciary or designated recipient partial
access to the user's account sufficient to perform the
tasks with which the fiduciary or designated recipient is
charged; and
Provide the fiduciary or designated recipient with a
copy in a record of any digital asset that, on the date
the custodian received the request for disclosure, the
user could have accessed if the user were alive and had
full capacity and access to the account.
1) Authorizes a custodian to assess a reasonable administrative
charge for the cost of disclosing digital assets and would
not require a custodian to disclose a digital asset deleted
by a user.
2) Provides that if a user directs or a fiduciary or designated
recipient requests a custodian to disclose some, but not all,
of the user's digital assets, the custodian need not disclose
the assets if segregation of the assets would impose an undue
burden on the custodian.
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3) Authorizes the custodian, fiduciary, or designated recipient
to petition the court for an order, as specified, if the
custodian believes the direction or request imposes an undue
burden.
4) Provides that the legal duties imposed on a fiduciary
charged with managing tangible property apply to the
management of digital assets, including all of the following:
(a) the duty of care; (b) the duty of loyalty; and (c) the
duty of confidentiality.
5) Provides that a fiduciary with authority over the property
of a decedent or settlor has the right of access to any
digital asset in which the decedent or settlor had a right or
interest, as specified.
6) Makes disclosure of the contents of the deceased user's or
settlor's account to a fiduciary of the deceased user or
settlor subject to the same license, restrictions, terms of
service, and legal obligations, including copyright law, that
applied to the deceased user or settlor.
Background
In order to address privacy concerns with the use of computers
and other digital and electronic communications, Congress passed
the Electronic Communications Privacy Act of 1986 (ECPA) (18
U.S.C. Sec. 2510-22) to update the Federal Wiretap Act of 1968.
The ECPA has been revised over the years by several pieces of
legislation, "to keep pace with the evolution of new
communications technologies and methods, including easing
restrictions on law enforcement access to stored communications
in some cases. . . . 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
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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,
which include estate and trust proceedings, to obtain documents
that are stored electronically.
However, internet service and electronic storage providers are
subject to both federal and state electronic communications
privacy laws, which may conflict when a person, other than the
user sending or storing electronic communications or the
recipient of an electronic communication, attempts to obtain the
records or contents of the electronic records and
communications. This is problematic when the executor,
administrator, or trustee (fiduciary) of a deceased user or
recipient is tasked with marshaling the decedent's assets and
liabilities in order to administer the decedent's trust or
estate. Since many individuals are now receiving invoices and
billing in electronic form as a way to go "paperless,"
performing many financial transactions online, as well as
primarily corresponding through electronic means, obtaining the
decedent's electronic communications may be the only way for the
fiduciary to determine the assets and liabilities of the
decedent. By 2014, seven states had enacted laws to grant some
degree of access of a decedent's electronic communications to
fiduciaries.
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)
Page 8
holder's instructions for the disposition of digital assets.
According to NCCUSL, the 2014 UFADAA provided fiduciaries with
default access to all digital information, but the revised act
(RUFADAA) protects the contents of electronic communications
from disclosure without the user's consent, and fiduciaries can
still access other digital assets unless prohibited by the user.
This bill adopts a modified version of RUFADAA and establish
procedures for a decedent's personal representative or trustee
to obtain digital assets and electronic information from the
custodian of those assets and information.
A coalition of privacy stakeholders contend that serious privacy
implications have not been adequately considered or addressed.
The opposition urges the author to amend this bill to: (1)
require fiduciaries to specify the account for which they are
requesting records and provide an affidavit to the custodian
that the disclosure of the user's digital assets is reasonably
necessary for estate administration; (2) clarify accessibility
to the decedent's account or digital assets; and (3) clarify
several definitions. Additionally, the opposition notes that
this bill "contains loopholes that allow the courts and tech
companies to disclose the contents of the decedent's digital
assets even if doing so goes against the written wishes of the
decedent." Opposition also highlights that the wishes expressed
by the decedent in a will would be trumped by the decedent's
choice in an online tool, even where the decedent made a
different choice clear in his/her will at a later date.
Comments
The author writes:
Prior to the digital age, the memorabilia of our lives was
stored in a cardboard box in our parent's attic or under their
bed. Today, a significant portion of the information about
our lives is kept online on our personal accounts. Whether
it's Facebook, Twitter, YouTube or even email, the information
stored online are today's version of the photo albums, videos,
and hand-written journals of yesterday.
Most people expect the contents of these online communications
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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.
AB 691 addresses this issue by striking a balance between
providing a clear path for fiduciaries to access relevant
information to handle the deceased person's estate, while
respecting the privacy choices of not just the deceased person
but those with whom the deceased was communicating.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified6/14/16)
AOL
California Bankers Association
California Chamber of Commerce
CompTIA
Facebook
Google
Internet Association
State Privacy and Security Coalition, Inc.
TechNet
Yahoo
OPPOSITION: (Verified6/14/16)
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American Civil Liberties Union of California
Consumer Federation of California
Consumer Watchdog
Electronic Frontier Foundation
Privacy Rights Clearinghouse
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:Margie Estrada / JUD. / (916) 651-4113
6/15/16 17:24:39
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