BILL ANALYSIS Ó
AB 691
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB
691 (Calderon)
As Amended June 14, 2016
Majority vote
--------------------------------------------------------------------
|ASSEMBLY: | | (May 11, |SENATE: |36-1 |(August 1, 2016) |
| | |2015) | | | |
| | | | | | |
| | | | | | |
--------------------------------------------------------------------
(vote not relevant)
Original Committee Reference: JUD.
SUMMARY: Establishes the Revised Uniform Fiduciary Access to
Digital Access Act (RUFADAA) to specify rules for the disclosure
of electronic information from a custodian of a person's digital
assets (custodian) to the personal representative of the estate
of a deceased user (representative) or trustee of the deceased
user's trust (trustee) for the purpose of administering the
estate or trust.
The Senate amendments delete the Assembly version of this bill,
and instead:
AB 691
Page 2
1)Establish the RUFADAA and authorizes a decedent's personal
representative or trustee (fiduciary) to access and manage
digital assets and electronic communications, as specified.
2)Authorize 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)Specify 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)Require 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
circumstances, including when the decedent has prohibited this
disclosure using the online tool.
5)Specify that a user's direction through the online tool or
testamentary document would override a contrary provision in a
terms-of-service agreement.
6)Provide 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 when the user
has not provided any direction as specified by this bill.
7)Authorize the custodian, in its sole discretion, to do any of
the following when disclosing the digital assets of a user:
a) Grant the fiduciary or designated recipient full access
to the user's account;
AB 691
Page 3
b) 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
c) 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.
8)Authorize 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.
9)Provide 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.
10)Authorize 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.
11)With respect to the content of electronic communications of
the user:
a) Provide that, if a deceased user consented to or a court
directs disclosure of the content of electronic
communications of the user, the custodian must disclose to
the personal representative of the estate of the user the
content of an electronic communication sent or received by
the user if the personal representative gives to the
AB 691
Page 4
custodian specified forms of documentation, including,
among other things: i) a written request for disclosure;
ii) a certified copy of the user's death certificate; iii)
a certified copy of the letter of appointment of the
representative; and iv) a copy of the user's will, trust,
or other record evidencing the user's consent to
disclosure, unless the user provided direction using an
online tool.
b) Provide that, unless otherwise ordered by the court,
directed by the user, or provided in a trust, the custodian
must disclose to a trustee that is not an original user of
an account the content of an electronic communication sent
or received by an original or successor user and carried,
maintained, processed, received, or stored by the custodian
in the account of the trust if the trustee gives to the
custodian specified forms of documentation.
12)With respect to the catalogue of electronic communication
sent or received by the user, and digital assets, other than
the content of electronic communications, of the user:
a) Provide that, unless the user prohibited disclosure of
digital assets or the court directs otherwise, the
custodian must disclose to the personal representative of
the estate of a deceased user a catalogue of electronic
communications sent or received by the user and digital
assets, other than the content of electronic
communications, of the user, if the personal representative
gives to the custodian specified documentation, including,
among other things: i) a written request for disclosure;
ii) a certified copy of the user's death certificate; and
iii) a certified copy of the letter of appointment of the
representative.
b) Provide that, unless otherwise ordered by the court,
directed by the user, or provided in a trust, a custodian
must disclose, to a trustee that is not an original user of
AB 691
Page 5
an account, the catalogue of electronic communications sent
or received by an original or successor user and stored,
carried, or maintained by the custodian in an account of
the trust and any digital assets, other than the content of
electronic communications, in which the trust has a right
or interest if the settlor of the trust is deceased and the
trustee gives to the custodian specified documentation.
13)Provide 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.
14)Provide 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.
15)Require a custodian, not later than 60 days after receipt of
the information required, as specified, to comply with a
request from a fiduciary or designated recipient to disclose
digital assets or terminate an account. Further provides that
if the custodian fails to comply with a request, the fiduciary
or designated recipient may apply to the court for an order
directing compliance.
16)Make 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.
FISCAL EFFECT: None
COMMENTS: In July 2014, the National Conference of
AB 691
Page 6
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." UFADAA was recently revised to clarify the
application of federal privacy laws and give legal effect to an
account 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 UFADAA 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.
Prior versions of this bill would have enacted the Privacy
Expectation Afterlife and Choices Act, which is an alternative
approach to disclosure of a decedent's electronic information.
As amended in the Senate, this bill adopts a modified version of
the RUFADAA and attempts to provide a clear legal framework to
help probate courts resolve questions about how to balance
competing privacy and estate administration concerns when a
decedent's estate representative, for the purpose of settling
the estate, seeks information, records, digital assets, or
electronic communications, from, typically, the email or social
media account of the deceased user.
This bill 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. According to the author, this bill "seeks to
strike 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."
AB 691
Page 7
NCCUSL states that the RUFADAA was recently approved and
represents a consensus reached among stakeholders, including
technology firms, privacy advocates, bankers, and the trust and
estate bar. NCCUSL asserts that the "consensus was the result
of a concerted effort by all parties over the last few months to
agree on a reasonable regulatory framework that will balance the
privacy interests of internet users with the need for
fiduciaries to perform their tasks and ensure the orderly
transfer of a decedent's assets to heirs. It gives legal effect
to an internet user's wishes when they are known, and provides
reasonable default rules that apply if the user has not
expressed a contrary intent. The act represents the best
opportunity to enact uniform legislation for an industry that
operates in every state." RUFADAA has been formally endorsed by
the Association of American Retired Persons (AARP), the Center
for Democracy and Technology, Facebook, Google, and the National
Academy of Elder Law Attorneys. (NCCUSL, Legislative Fact Sheet
- Revised Uniform Fiduciary Access to Digital Assets Act
(2015).) To date, 10 states (Colorado, Florida, Idaho, Indiana,
Michigan, Oregon, Tennessee, Washington, Wisconsin, and Wyoming)
have enacted RUFADAA, and at least 18 other states have
introduced RUFADAA legislation this year.
According to NCCUSL: "The purpose of the [RUFADAA] is twofold.
First, it gives fiduciaries the legal authority to manage
digital assets and electronic communications in the same way
they manage tangible assets and financial accounts, to the
extent possible. Second, it gives custodians of digital assets
and electronic communications legal authority to deal with the
fiduciaries of their users, while respecting the user's
reasonable expectation of privacy for personal communications.
The general goal of the act is to facilitate fiduciary access
and custodian disclosure while respecting the privacy and intent
of the user. It adheres to the traditional approach of trusts
and estates law, which respects the intent of an account holder
and promotes the fiduciary's ability to administer the account
holder's property in accord with legally-binding fiduciary
duties. The act removes barriers to a fiduciary's access to
electronic records and property and leaves unaffected other law,
such as fiduciary, probate, trust, banking, investment
securities, agency, and privacy law."
AB 691
Page 8
Disclosure of electronic communications. This bill provides
protections for a deceased user's private electronic
communications by establishing the circumstances under which the
custodian of the electronic communications could disclose those
communications. This bill establishes a three-tier priority
system for determining the user's intent for disclosure of his
or her electronic communications.
First in priority, this bill authorizes disclosure pursuant to
the user's designation through an online tool. This tool
provides the most current reflection of the user's intent for
disclosure to another person. Second, the user can provide
directions in an estate plan for the disposition of the user's
digital assets. The custodian would then be able to rely on the
testamentary document containing these disclosure instructions,
which would then have legal effect pursuant to this bill.
Finally, if the user did not provide any direction regarding
disclosure of digital assets, the terms-of-service governing the
account would apply. If the terms-of-service do not address
fiduciary access to digital assets, the default rules provided
in this bill would apply.
This bill does not change or impair a right of a custodian or a
user under a terms-of-service agreement to access and use
digital assets of a user, and does not give a fiduciary or
designated recipient any new or expanded rights other than those
held by the user for whom, or for whose estate or trust, the
fiduciary or designated recipient acts or represents. This bill
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 when the user
has not provided any direction, as specified.
Analysis Prepared by:
Anthony Lew / JUD. / (916) 319-2334 0003668
AB 691
Page 9