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Aug. 2 — California is more likely to join 18 other states in setting rules for release of a dead person's digital assets, such as e-mails and social media accounts, to a fiduciary, following state Senate approval of a bill.
The measure, A.B. 691, by Assemblyman Ian Calderon (D) passed the Senate 36-1 without debate Aug. 1 after having been stalled there for a year because of objections from a Democratic senator and some privacy groups.
Sen. Hannah-Beth Jackson (D) cast the only vote against the bill on the Senate floor. She chairs the Senate Judiciary Committee, where she objected to parts of the bill in three separate hearings in 2015 and 2016 (21 ECLR 687, 5/11/16).
TechNet and other companies and business groups, including Facebook, the Internet Association, Google and Yahoo! Inc., pushed for Senate action on the bill.
“For centuries we have used established procedures in managing the physical assets of the deceased,” Calderon said in an Aug. 1 news release. “This bill ensures that their digital estate is administered properly while still protecting their privacy.”
The state Assembly passed the bill May 11, 2015. It now heads back to the Assembly, which would have to vote to concur in amendments made in the Senate, but it may first go before the Assembly Judiciary Committee again because the Senate amendments were substantial, John Doherty, vice president of state policy and politics for TechNet, told Bloomberg BNA Aug. 2. Supporters expect the Assembly to pass the measure.
Doherty said supporters don't anticipate opposition from the Assembly, and they are reaching out to Gov. Jerry Brown (D) to win his signature on the bill. It must reach Brown's desk by Aug. 31, which is the last day of the 2016 session.
If Brown signs the bill, it would take effect Jan. 1, 2017.
“We actually think we're a little behind on this,” Doherty said.
Already, 18 other states have enacted similar measures and 11 others are considering them. The multiple state measures are based on a model law developed by the Uniform Law Commission called the Fiduciary Access to Digital Assets Act California's proposal contains the model law's provisions related to decedents, but not provisions related to conservatorships.
Between passage for the third time in the Senate Judiciary Committee in May and the vote on the Senate floor, Calderon made minor changes to the bill to clarify the order of priority for a decedent's wishes to dictate a fiduciary's access to electronic assets.
First priority would go to a deceased user's instructions in an online tool about whether to release digital asset information to a fiduciary, for example through Facebook Inc.'s Legacy Contact tool or Google Inc.'s Inactive Account Manager tool. A user must be allowed to modify preferences using the tool at any time.
Second, if a user left no instructions with such tools, the person's designation in a will would control.
Third, if a deceased user left no instructions either through an online tool or a will, the general terms of service for individual online accounts would govern. The most recent amendments more clearly de-emphasize the terms of service on the priority list, Doherty said.
The tech companies held fast to their position that a user's preferences through a specific online tool should have a higher priority than a will, he said. Jackson had objected to instructions on the internet trumping wills and testamentary statements from decedents.
“This will be a nice road map for people to plan, and to handle it if there was no planning,” Doherty said.
Privacy groups, including the American Civil Liberties Union and Electronic Frontier Foundation, remain opposed to the bill, saying it contains loopholes that would allow courts and tech companies to disclose the contents of a decedent's digital assets even if doing so would go against the written wishes of the decedent.
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