Rep. Marcus C. Evans, Jr.

Filed: 5/14/2015





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2    AMENDMENT NO. ______. Amend Senate Bill 1376 by replacing
3everything after the enacting clause with the following:
4    "Section 1. Short title. This Act may be cited as the
5Access to Records of Deceased Individuals Act.
6    Section 5. Definitions. As used in this Act:
7    "Contents", when used with respect to any wire, oral, or
8electronic communication, includes any information concerning
9the substance, purport, or meaning of that communication, as
10defined in 18 U.S.C. 2510(8), and includes the subject line of
11a communication.
12    "Electronic communication" means any transfer of signs,
13signals, writing, images, sounds, data, or intelligence of any
14nature transmitted in whole or in part by a wire, radio,
15electromagnetic, or photoelectronic or photooptical system
16that affects interstate or foreign commerce, but does not



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2        (1) any wire or oral communication;
3        (2) any communication made through a tone-only paging
4    device;
5        (3) any communication from a tracking device; or
6        (4) electronic funds transfer information stored by a
7    financial institution in a communications system used for
8    the electronic storage and transfer of funds,
9as defined in 18 U.S.C. 2510(12).
10    "Electronic communication service" means any service which
11provides to users thereof the ability to send or receive wire
12or electronic communications, as defined in 18 U.S.C. 2510(15).
13    "Electronic communications system" means any wire, radio,
14electromagnetic, or photooptical or photoelectronic facilities
15for the transmission of wire or electronic communications and
16any computer facilities or related electronic equipment for the
17electronic storage of such communications, as defined in 18
18U.S.C. 2510(14).
19    "Provider" means an electronic communication service or
20remote computing service as defined in 18 U.S.C. 2510 or 2711.
21    "Record or other information pertaining to" shall be
22interpreted in a manner consistent with that term as used in 18
23U.S.C. 2702(c).
24    "Remote computing service" means the provision to the
25public of computer storage or processing services by means of
26an electronic communications system, as defined in 18 U.S.C.



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2    "User" means any person or entity that:
3        (1) uses an electronic communication service; and
4        (2) is duly authorized by the provider of the service
5    to engage in such use,
6as defined in 18 U.S.C. 2510(13).
7    Section 10. Disclosure to executor or administrator.
8    (a) A court that has jurisdiction of the estate of a
9deceased user shall order a provider to disclose to the
10executor or administrator of the estate a record or other
11information pertaining to the deceased user as described in 18
12U.S.C. 2702, but not including the contents of communications
13or stored contents, if the court makes the following findings
14of fact:
15        (1) the user is deceased;
16        (2) the deceased user was the subscriber to or customer
17    of the provider;
18        (3) the accounts belonging to the deceased user have
19    been identified with specificity, including a unique
20    identifier assigned by the provider;
21        (4) there are no other authorized users or owners of
22    the deceased user's accounts;
23        (5) disclosure is not in violation of 18 U.S.C. 2701 et
24    seq., 47 U.S.C. 222, or other applicable law;
25        (6) the request for disclosure is narrowly tailored to



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1    effect the purpose of the administration of the estate;
2        (7) the executor or administrator demonstrates a good
3    faith belief that account records are relevant to resolve
4    fiscal assets of the estate;
5        (8) the request seeks information spanning no more than
6    one year prior to the date of death; and
7        (9) the request is not in conflict with the deceased
8    user's will.
9    (b) A provider shall be required to disclose to the
10executor or administrator of the estate of a deceased user the
11contents of the deceased user's account only if the executor or
12administrator gives the provider all of the following:
13        (1) a written request for the contents of deceased
14    user's account;
15        (2) a copy of the death certificate of the deceased
16    user; and
17        (3) an order of the court that has jurisdiction of the
18    estate of a deceased user:
19            (A) finding that the will of the decedent or a
20        setting within the product or service regarding how the
21        user's contents can be treated after a set period of
22        inactivity or other event expressly consented to the
23        disclosure of the contents of the deceased user's
24        account by the executor or administrator of the estate
25        of the deceased user;
26            (B) ordering that the estate shall first indemnify



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1        the provider from all liability in complying with the
2        order;
3            (C) finding that the user is deceased;
4            (D) finding that the deceased user was the
5        subscriber to or customer of the provider;
6            (E) finding that accounts belonging to the
7        deceased user have been identified with specificity,
8        including a unique identifier assigned by the
9        provider;
10            (F) finding that there are no other authorized
11        users or owners of the deceased user's accounts; and
12            (G) finding that disclosure of the contents is not
13        in violation of 18 U.S.C. 2701 et seq., 47 U.S.C. 222,
14        or other applicable law.
15    Section 15. Undue hardship. A court entering an order
16pursuant to Section 10 shall quash or modify the order, on a
17motion made promptly by the provider, if compliance with the
18order would otherwise cause an undue burden on the provider or
19if any of the requirements of Section 10 are not satisfied.
20    Section 20. Limitations on disclosure.
21    (a) Notwithstanding Section 10, a provider shall not be
22compelled to disclose any record or any contents of
23communications if:
24        (1) the deceased user expressed his or her intent to



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1    disallow disclosure through (i) deletion of the records or
2    contents during the user's lifetime or (ii) affirmatively
3    indicating through a setting within the product or service
4    regarding how the user's records or contents can be treated
5    after a set period of inactivity or other event;
6        (2) the provider is aware of any indication of lawful
7    access to the account after the date of the deceased user's
8    death; or
9        (3) disclosure violates other applicable law.
10    (b) Nothing in this Act shall be interpreted to confer upon
11the recipient any greater rights in the contents than those
12enjoyed by the deceased user.
13    Section 25. Notice of request for disclosure; time for
14objection. A provider may notify the account that a request for
15information was made pursuant to Section 10, and may provide
16any current user of the account a reasonable period of time to
17object to disclosure, during which no disclosure shall be made.
18If a user notifies the provider that he or she objects, no
19disclosure shall be made.
20    Section 30. Allowing assumption of control not required. A
21provider shall not be required to allow any requesting party to
22assume control of the deceased user's account.
23    Section 35. No liability; good faith compliance. A provider



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1shall not be held liable in any civil or criminal action for
2compliance in good faith with a court order issued pursuant to
3this Act.".