BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
SB 849 (Anderson)
As Amended April 21, 2014
Hearing Date: May 6, 2014
Fiscal: No
Urgency: No
TMW
SUBJECT
Decedents' Estates: Electronic Mail
DESCRIPTION
Existing law authorizes a personal representative to take
possession or control of all property of the decedent to be
administered in the decedent's estate. This bill would
authorize the decedent's personal representative to request from
an electronic communication service or remote computer service,
access to, or copies of documents from, the electronic mail
account of the decedent, as specified. This bill would require
the personal representative, prior to submitting the request to
the electronic communication service or remote computer service,
to obtain an order of the probate court designating the executor
or administrator as an agent for the subscriber on behalf of his
or her estate and ordering that the estate shall first indemnify
the electronic communication service or remote computing service
from all liability in complying with the order.
This bill would authorize an electronic communication service or
remote computer service to provide access to or copies of
documents from the decedent's electronic mail account. This
bill would also provide that access or copies of electronic
communications is subject to copyright law, as well as any
applicable and enforceable terms of a service agreement.
BACKGROUND
Existing law authorizes a decedent's personal representative
(which may be an executor, trustee, administrator, administrator
with the will annexed, special administrator, successor personal
(more)
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representative, or public administrator) to take possession and
control of the decedent's property to be administered in the
estate.
With the explosion of the various uses of the Internet,
including electronic communication through email, social media
Web sites, blogs, and electronic media purchases through such
Web sites as iTunes and Amazon.com, questions regarding
ownership and access to those "digital assets" upon death or
incapacity are becoming more common. According to the National
Conference of Commissions on Uniform State Laws, these digital
assets, which range from online gaming items to photos, to
digital music, to clients, have real value: American consumers
valued their digital assets, on average, at almost $55,000.
(National Conference of Commissioners on Uniform State Laws,
Draft of Fiduciary Access to Digital Assets Act (Apr. 10, 2014),
p. 1, citing Green, Passing Down Digital Assets, Wall Street
Journal (Aug. 31, 2012)
[as of Apr. 30, 2014].) The ability of a
personal representative to gain access or control over those
digital assets is unclear and is subject to both federal privacy
and computer "hacking" laws as well as state probate law.
Complicating these issues are the terms of service agreements
that most Internet service providers and Web sites require their
users to agree to in order to use these services and sites.
To address the issue of personal representative access to a
decedent's digital access, this bill would authorize the
personal representative to request, and would authorize 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. This bill would require the
personal representative to provide the account's service
provider with a certified copy of the court order appointing the
personal representative, a copy of the decedent's death
certificate, a written request for access or copies, and an
order of the probate court designating the executor or
administrator as an agent for the subscriber and requiring the
estate to indemnify the electronic communication service or
remote computing service from all liability in complying with
the order.
CHANGES TO EXISTING LAW
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Existing law authorizes a decedent's personal representative to
take possession or control of all of the decedent's property to
be administered in the decedent's estate. (Prob. Code Sec.
9650(a)(1).)
Existing law requires the personal representative to take all
steps reasonably necessary for the management, protection, and
preservation of, the estate in his or her possession. (Prob.
Code Sec. 9650(b).)
Existing law authorizes the real property or tangible personal
property to be left with or surrendered to the person
presumptively entitled to it unless or until, in the judgment of
the personal representative, possession of the property by the
personal representative will be necessary for purposes of
administration. Existing law requires a person holding the
decedent's property to surrender it to the personal
representative on requires by the personal representative.
(Prob. Code Sec. 9650(c).)
Existing federal law , the Electronic Communications Privacy Act
(ECPA), defines "electronic communication service" to mean any
service which provides to users thereof the ability to send or
receive wire or electronic communications. (18 U.S.C. Sec.
2510(15).) The Stored Communications Act (SCA) defines "remote
computing service" to mean the provision to the public of
computer storage or processing services by means of an
electronic communications system. (18 U.S.C. Sec. 2711(2).)
This bill would authorize the personal representative of a
decedent to request access to the electronic mail account of a
decedent, or copies of the content of the account, by providing
the service provider of the account with all of the following:
a certified copy of the court order appointing the personal
representative;
a copy of the death certificate of the decedent;
a written request for access to, or copies of the content of,
the electronic mail account; and
an order of the probate court which, by law, has jurisdiction
over the estate of a deceased person, designating the executor
or administrator as an agent for the subscriber, as defined in
the ECPA, on behalf of his or her estate, and ordering that
the estate shall first indemnify the electronic communication
service or remote computing service, as defined in the ECPA,
from all liability in complying with the order.
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This bill would authorize an electronic communication service or
remote computer service, as defined under the ECPA, to provide
to the personal representative or administrator of the
decedent's estate who was domiciled in California at the time of
his or her death access to the electronic mail account of a
decedent or copies of the content of the account if the personal
representative has provided the above information.
This bill would provide that any provision of access or copies
of electronic communications is subject to copyright law as well
as any applicable and enforceable terms of a service agreement.
COMMENT
1. Stated need for the bill
The author writes:
According to the nonpartisan National Conference of
Commissioners on Uniform State Laws, "As the number of digital
assets held by the average person increases, questions
surrounding the disposition of these assets upon the
individual's death or incapacity are becoming more common. Few
holders of digital assets and accounts consider the fate of
their online presences once they are no longer able to manage
their assets. And these assets have real value: according to
a 2011 survey from McAfee, Intel's security-technology unit,
American consumers valued their digital assets, on average, at
almost $55,000. These assets range from online gaming pieces
to photos, to digital music to client lists to bank accounts
to bill-paying, etc. There are 30 million Facebook accounts
that belong to dead people. The average individual has 25
passwords. Some service providers have explicit policies on
what will happen when an individual dies, others do not; even
where these policies are included in the terms of service,
most consumers click-through these agreements."
Senate Bill 849 frees grieving families to enable decedents to
act on behalf of the memories and lives of their loved ones,
and allowing them the right to treat their legacies and
reputations with honor, love, and respect. This bill provides
a pathway so that rights and responsibilities of all involved
are not left to guesswork but made reasonably clear.
Time Magazine explained, in its July 27, 2013 issue, "What
happens to all your digital possessions-your witty Gmails,
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your candid Facebook snapshots, your exhaustive iTunes
collection of Barry White-when you shuffle off this mortal
coil? More than 10 states have considered bills so far this
year related to so-called digital assets, and two made it past
the governor's desk. That brings the total to seven states
that have laws on the books, addressing an issue that will
only become more important as tech-obsessed generations age."
A grim reality is more than virtual. Bullying and other
struggles are hidden behind the wall of electronic secrecy,
lasting longer than do their victims. Just one example
reported by the Washington Post: "?Ricky Rash's search for
answers began almost from the moment he found his son's body
in a field a few miles from their Virginia farm. Why would a
15-year-old boy take his own life? Why especially this boy, a
hard-working teenager whose dreams and intelligence seemed
sure to take him far beyond his Nottoway County dairy farm?
Here was a kid who was big for his age but gentle, who loved
to read so much that he carried his Kindle into the woods when
he hunted deer and talked of going to Virginia Tech and then
maybe Harvard Law School. After Eric Rash, 15, committed
suicide in January 2011, his parents' looked everywhere for
clues to explain his act. But they ran into trouble when they
tried to open his Facebook account. Now Richard and Diane
Rash are pushing for laws that would make it easier for
parents or guardians to obtain access to a dead child's online
accounts. After Eric's suicide in January 2011, Ricky and
Diane Rash hunted for clues to explain their son's death,
including his Facebook page. But they found that the Internet
giant, citing state and federal privacy laws, blocked their
access until their son's estate was settled. So now the Rashes
want to change the law. 'We were just grieving parents
reaching out for anything we could,' Ricky Rash said."
2. Confusion regarding effect of bill on probate administration
In order to obtain access to the decedent's electronic mail
account or copies of the content of that account, this bill
would require the decedent's personal representative to obtain
an order of the probate court designating the executor or
administrator as an agent for the "subscriber," on behalf of his
or her estate, and ordering that the estate shall first
indemnify the electronic communication service or remote
computing service, as defined in the ECPA, from all liability in
complying with the order.
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California Judges Association (CJA), in opposition, asserts that
"the bill contains an indemnification provision that would
effectively prevent the court from discharging the personal
representative, and would leave cases open indefinitely."
Particularly, what would be the duration and amount of the
estate's indemnity liability? How would the indemnity
obligation to the electronic communications service or remote
computing service, which may not be claimed by the electronic
communications service until long after the personal
representative accessed the account, affect the estate's other
contingent liabilities or the ability of the estate to complete
administration? And would this liability obligation be covered
by the personal representative's bond? Would this bill apply to
conservators and attorneys-in-fact under powers of attorney,
and, if not, should it? These are just a few questions about
how the bill would operate in probate cases, yet these questions
merely scratch the surface of the complex area of law.
Another area of concern with this bill is privacy. The Internet
Association (TIA), in support, argues that the federal Stored
Communication Act imposes clear duties on providers of
electronic communications services, "[a]nd while federal law has
taken a strong policy position in favor of the privacy of the
contents of electronic communications, there are currently a
number of states considering a different approach that would
require full disclosure without taking into consideration the
privacy of other individuals, such as a living person who
happens to be a party to, or is discussed without, a decedent's
email. SB 849 takes an approach that favors privacy." Staff
notes that this bill does not require any consent from a living
person who was a party to the decedent's email, nor any stated
desire of the decedent that his or her email should be accessed
and read upon the death of the decedent. TIA asserts that "SB
849 helps answer the question of who should be able to obtain
access to the contents of a user's digital assets -- such as an
email or social media account - upon the death of that user.
The bill would clarify that such digital assets should not be
granted to any third party or fiduciary absent strong
verification and authentication requirements, court supervision,
or the consent of the decedent." Staff notes that this bill
does not authorize access to "digital assets" - only access to
the decedent's electronic mail account - and does not provide
for the consent of the decedent. Arguably, the only provisions
in this bill that TIA would support are (1) indemnification for
the account services, and (2) the savings clause in this bill
that states that any provision of access or copies of the
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electronic communications is subject to copyright law as well as
any applicable and enforceable terms of a service agreement
(presumably between the service and the decedent).
Contrary to the opinion of TIA, the American Civil Liberties
Union (ACLU) has expressed concern that this bill may not
properly protect the decedent's privacy. The ACLU has suggested
an amendment to the bill to also require the personal
representative to provide a copy of the decedent's will granting
the executor or administrator access to, or copies of the
content of, the decedent's electronic mail account. However,
that amendment would not further the author's intent to help
parents gain access to their deceased child's electronic
communications because the child would not have created a will
authorizing the parents to gain access to his or her online
accounts. These concerns regarding the decedent's privacy
demonstrates another problem with this bill in that it fails to
take into account the appropriate level of access to the account
of the decedent, who has not planned, or is too young to have
considered planning, for providing access to his or her account,
whether the personal representative named for handling the
estate assets is the person the decedent would have wanted
reading their private email communications, and what level of
control or distribution of those private communications the
personal representative is authorized to assert.
3.Concerns regarding stated intent and actual scope of the bill
This bill would authorize a decedent's personal representative
to request access to or copies of content of electronic
communication services or remote computer services used by the
decedent. The author asserts that this bill would free grieving
families to act on behalf of the memories and lives of their
deceased loved ones, and would allow the families the right to
treat the decedents' legacies and reputations with honor, love,
and respect. The author points to a 2007 Time Magazine article
discussing the issue of a decedent's "digital assets" (which may
include, among other things, G-mails, Facebook photos, and
iTunes music collections purchased by the decedent) and the
concerns regarding how an estate administrator can manage those
digital assets.
Yet, this bill addresses only access to the decedent's
electronic mail account and relies on definitions provided under
federal law. CJA raises the concern that this bill does not
speak to the larger issues of defining "digital assets" or how
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state law should properly provide the decedent's personal
representative with access to and control over digital music
collections, social media content posted by the decedent, blogs,
or other electronic assets that are continually created as the
Internet and Web site services evolve.
Although a few states have enacted legislation on providing
personal representative access to digital assets, these laws
authorize varying degrees of access to different types of
digital assets. Further, the rights of a person's fiduciary,
the category of fiduciary included (i.e., personal
representative, conservator, trustee), and whether the person's
incapacity should be included, are among the general concerns
raised when enacting this type of legislation.
As an alternative to this bill, CJA notes that "the National
Conference of Commissioners on Uniform State Laws (NCCUSL) has
been working on a Model Act, the Fiduciary Access to Digital
Assets Act, which proposes to address in a comprehensive manner
these and related issues. We understand the draft Act will be
available later this year. At that time, the Act's provisions,
designed to promote consistent and predictable standards and
which we are told have included a number of California
stakeholders, can be more fully considered to address the many
issues related to email as well as to social media accounts, and
afford the opportunity to consider how those provisions might
apply not only to administrators of estates of decedents, but
also to trustees, conservators, and attorneys-in-fact under
powers of attorney." Another option is to request that the
California Law Revision Commission (CLRC) study fiduciary access
to digital assets, which would properly determine the interplay
between federal digital assets laws and California's probate
scheme in order to craft appropriate legislation for the needs
of California's residents.
Apart from the obvious preference of using a proposed uniform
law or enacting legislation properly researched by the CLRC with
public comment, this bill has some drafting issues. This bill
would rely on the ECPA definition of "electronic communication,"
which means any transfer of signs, signals, writing, images,
sounds, data, or intelligence of any nature transmitted in whole
or in part by a wire, radio, electromagnetic, photoelectronic or
photooptical system that affects interstate or foreign commerce.
(18 U.S.C. Sec. 2510(12). This bill also purports to rely on
the ECPA definition of "remote computer service," but that act
does not provide such a definition. However, the Stored
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Communications Act (SCA) defines "remote computing service" to
mean the provision to the public of computer storage or
processing services by means of an electronic communications
system. (18 U.S.C. Sec. 2711(2).) Notably, this bill does not
utilize the same term as in the SCA, so it is unclear whether
"remote computer service" would be interpreted to mean "remote
compute service" under the SCA. Additionally, this bill would
provide that "subscriber" is defined under the ECPA, but neither
the ECPA nor the SCA provide a definition for "subscriber."
Support : The Internet Association
Opposition : California Judges Association
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : None Known
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