Full Text of SB1376 99th General Assembly
SB1376ham002 99TH GENERAL ASSEMBLY | Rep. Marcus C. Evans, Jr. Filed: 5/13/2015
| | 09900SB1376ham002 | | LRB099 07681 JLS 35500 a |
|
| 1 | | AMENDMENT TO SENATE BILL 1376
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 1376 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 1. Short title. This Act may be cited as the | 5 | | Access 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 | 8 | | electronic communication, includes any information concerning | 9 | | the substance, purport, or meaning of that communication, as | 10 | | defined in 18 U.S.C. 2510(8), and includes the subject line of | 11 | | a communication. | 12 | | "Electronic communication" means any transfer of signs, | 13 | | signals, writing, images, sounds, data, or intelligence of any | 14 | | nature transmitted in whole or in part by a wire, radio, | 15 | | electromagnetic, or photoelectronic or photooptical system | 16 | | that affects interstate or foreign commerce, but does not |
| | | 09900SB1376ham002 | - 2 - | LRB099 07681 JLS 35500 a |
|
| 1 | | include: | 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, | 9 | | as defined in 18 U.S.C. 2510(12). | 10 | | "Electronic communication service" means any service which | 11 | | provides to users thereof the ability to send or receive wire | 12 | | or electronic communications, as defined in 18 U.S.C. 2510(15). | 13 | | "Electronic communications system" means any wire, radio, | 14 | | electromagnetic, or photooptical or photoelectronic facilities | 15 | | for the transmission of wire or electronic communications and | 16 | | any computer facilities or related electronic equipment for the | 17 | | electronic storage of such communications, as defined in 18 | 18 | | U.S.C. 2510(14). | 19 | | "Provider" means an electronic communication service or | 20 | | remote computing service as defined in 18 U.S.C. 2510 or 2711. | 21 | | "Record or other information pertaining to" shall be | 22 | | interpreted in a manner consistent with that term as used in 18 | 23 | | U.S.C. 2702(c). | 24 | | "Remote computing service" means the provision to the | 25 | | public of computer storage or processing services by means of | 26 | | an electronic communications system, as defined in 18 U.S.C. |
| | | 09900SB1376ham002 | - 3 - | LRB099 07681 JLS 35500 a |
|
| 1 | | 2711(2). | 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, | 6 | | as 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 | 9 | | deceased user shall order a provider to disclose to the | 10 | | executor or administrator of the estate a record or other | 11 | | information pertaining to the deceased user as described in 18 | 12 | | U.S.C. 2702, but not including the contents of communications | 13 | | or stored contents, if the court makes the following findings | 14 | | of 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 |
| | | 09900SB1376ham002 | - 4 - | LRB099 07681 JLS 35500 a |
|
| 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 | 10 | | executor or administrator of the estate of a deceased user the | 11 | | contents of the deceased user's account only if the executor or | 12 | | administrator 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 |
| | | 09900SB1376ham002 | - 5 - | LRB099 07681 JLS 35500 a |
|
| 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 | 16 | | pursuant to Section 10 shall quash or modify the order, on a | 17 | | motion made promptly by the provider, if compliance with the | 18 | | order would otherwise cause an undue burden on the provider or | 19 | | if 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 | 22 | | compelled to disclose any record or any contents of | 23 | | communications if: | 24 | | (1) the deceased user expressed his or her intent to |
| | | 09900SB1376ham002 | - 6 - | LRB099 07681 JLS 35500 a |
|
| 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 | 11 | | the recipient any greater rights in the contents than those | 12 | | enjoyed by the deceased user.
| 13 | | Section 25. Notice of request for disclosure; time for | 14 | | objection. A provider may notify the account that a request for | 15 | | information was made pursuant to Section 10, and may provide | 16 | | any current user of the account a reasonable period of time to | 17 | | object to disclosure, during which no disclosure shall be made. | 18 | | If a user notifies the provider that he or she objects, no | 19 | | disclosure shall be made.
| 20 | | Section 30. Allowing assumption of control not required. A | 21 | | provider shall not be required to allow any requesting party to | 22 | | assume control of the deceased user's account. | 23 | | Section 35. No liability; good faith compliance. A provider |
| | | 09900SB1376ham002 | - 7 - | LRB099 07681 JLS 35500 a |
|
| 1 | | shall not be held liable in any civil or criminal action for | 2 | | compliance in good faith with a court order issued pursuant to | 3 | | this Act.".
|
|