In relation to decedent's electronic mail service accounts

Summary of provisions

Section one of this bill amends section 11-1.11(b) of the Estates, Powers, and Trusts Law ("EPTL") to add a new subparagraph (22). This new subparagraph provides the executor or personal representative with the power to request information regarding the decedent's electronic mail or electronic storage account. This power does not include the power to obtain the contents of any electronic mail or file in an electronic storage account.

Section two of the bill adds a new section 11-1.12 to the EPTL. This new section provides executors and personal representatives with access to the decedent's electronic mail accounts and electronic storage accounts. This access is granted when the decedent has consented to the executor or personal representative's access to such accounts, as provided in the new General Business Law Article 10-C, and the Court issues an order that includes the indemnification of the service provider granting such access. When the decedent has not consented because the electronic mail or electronic storage account was established prior to the effective date of the requirements provided in the new General Business Law Arti- cle, access may be granted pursuant to a Court order, provided that the Court order includes indemnification of the service provider granting such access.

Section three of the bill amends Mental Hygiene Law section 81.21(a) to add a new paragraph 20 which provides that an incapacitated person's electronic mail service accounts are authorized to be managed through Mental Hygiene Law section 81.45.

Section four of the bill amends Mental Hygiene Law section 81.21(a)(19) with a technical change.

Section five of the bill amends Mental Hygiene Law section 81.44(g) by adding a new subdivision (g) which provides that within 150 days of the incapacitated person's death, the guardian shall serve copies of all catalogs of electronic mail messages received by the guardian and copies of all electronic mail messages disclosed to the guardian to the personal representative of the decedent's estate, or where there is no personal representative, the administrator of the estate. There will be no extensions to furnish these copies unless by order of the Court.

Section six of the bill amends the Mental Hygiene Law by adding a new section 81.45 to provide for limited power of the guardian to obtain

disclosure of the content of the incompetent person's electronic mail messages. An individual appointed as guardian for an incapacitated person is authorized to request a catalog of electronic mail messages and information relating to the incapacitated person's electronic mail service account when the request is necessary or appropriate for the proper management of the incapacitated person's property or financial affairs. The guardian can commence a proceeding in court to require the disclosure of the header and content of specific commercial electronic mail messages when such disclosure is necessary or appropriate for the proper management of the incapacitated person's property or financial affairs. A guardian is not authorized to petition the court for disclo- sure of any personal or confidential electronic mail messages.

Section seven of the bill amends the Surrogate's Court Procedure Act to add a new section 2116 providing for a proceeding by the fiduciary to compel disclosure of the content of commercial electronic mail messages. This would allow the fiduciary of an estate to commence a proceeding to petition the court for access to certain commercial electronic mail messages that would be necessary for the administration of the estate. The court has to be satisfied that no messages are personal or confiden- tial and if that is the case, then the court may release header informa- tion and content of the commercial electronic mail messages to the fidu- ciary and require a bond even if the will authorized the executor to serve without bond.

Section eight of the bill amends the General Business Law by adding a new Article 10C. This new Article contains five new sections. New section 167 are definitions of the terms used in the Article.

New section 167-a provides that any electronic mail or electronic data storage account opened after December 31, 2016 must allow a New York resident to nominate a person or the personal representative or executor of his or estate as the person who may access the electronic mail or electronic data storage account being established. The service provider has the option to allow the New York resident to specify certain items in such accounts for which access is not granted. For electronic mail or electronic data storage accounts opened by a New York resident prior to January 1, 2017, the service provider may afford the New York resident account holder with the same ability to nominate as will be provided to New York residents who open accounts after December 31, 2014. When the service provider presents the New York resident with the option to nomi- nate, the service provider must also disclose that in the event the account is accessed, the estate or individual named will be required to indemnify the service provider for any liability arising from such access. If an electronic mail service provider provides residents with the opportunity to consent to disclosure, the service provider must also provide the ability to revoke a nomination and to nominate a different individual. If a nomination is revoked and another person is not nomi- nated, the consent to disclosure is deemed to be revoked, though this would not preclude any court order allowing disclosure of commercial electronic mail. This section also provides for the types of statements the service provider shall include in regard to authorizing disclosure.

New section 167-b provides that any person engaged in business in New York who uses electronic mail and/or electronic data as a means of communication shall be deemed to have consented to the access of the electronic mail or electronic data sent to the decedent. This section also requires the service providers to provide access to the person nominated by the New York resident or when access is ordered by the Court.

New section 167-c provides that the an electronic mail or electronic data storage account cannot be automatically be terminated upon the death of the account holder. The executor or personal representative for the decedent's estate, or next of kin when the estate is not subject to probate, may request termination of such accounts.

New section 167-d provides that any provision in an electronic mail service provider's terms of service or other contractual agreement with an account holder who was a resident of this state at the time of death for the provision of an electronic mail account that causes the deletion of any electronic mail messages upon the death of the account holder shall be void as against public policy. Upon notification of the death of an account holder, the service provider shall retain all electronic mail messages for a period of no less than six months following the account holder's death, provided there are no laws or regulations stat- ing a longer period than six months.

New section 167-e provides that the Consumer Protection Division of the Department of State shall, in consultation with the Department of Finan- cial Services, post information regarding the importance of ensuring that electronic mail and electronic data storage accounts can be accessed after death on the Division's home page.

Section nine of the bill provides this act shall take effect on the ninetieth day after it shall have become a law.

Justification

In today's world business is conducted on computers and the Internet, but our laws not kept up with society's increasing reli- ance on technology. This bill would address one of the short comings of the State's estates, powers, and trusts laws insurance companies regard- less of whether it be home owners or health are conducting business online, sending bills and accepting payment is the Internet and many times the only record of such a transaction on the customer's end is the receipt sent to the customer's electronic mail. An increasing number of online sales and transactions are conducted with receipts for purchase being sent to electronic mail accounts of the purchaser. The Apple corporation even sends receipts for in store purchases to the electronic mail accounts of their customers. Given the increased reliance of elec- tronic mail and electronic information storage systems the law needs to be amended to reflect the way in which our society now operates in the information age and allow the executor or administrator of an estate to have access to or copies of information contained in the electronic mail account or the electronic information storage system of the decedents.

Legislative history

2014: S.6176-A - Referred to Judiciary

Fiscal implications

Minimal

Effective date

This act shall take effect on the 90th day.