HOUSE DOCKET, NO. 1591 FILED ON: 1/15/2015 HOUSE . No. 1287 The Commonwealth of Massachusetts _________________ PRESENTED BY: John V. Fernandes _________________ To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General Court assembled: The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill: An Act relative to access to a decedent's electronic mail accounts. _______________ PETITION OF: NAME: DISTRICT/ADDRESS: DATE ADDED: John V. Fernandes 10th Worcester 1/15/2015 Bradley H. Jones, Jr. 20th Middlesex 1/30/2015 Stephen L. DiNatale 3rd Worcester 1/29/2015 Colleen M. Garry 36th Middlesex 1/29/2015 Angelo J. Puppolo, Jr. 12th Hampden 1/28/2015 Tackey Chan 2nd Norfolk 1/29/2015 Louis L. Kafka 8th Norfolk 1/20/2015 Frank I. Smizik 15th Norfolk 1/29/2015 Kenneth I. Gordon 21st Middlesex 1/27/2015 James J. Dwyer 30th Middlesex 1/29/2015 Josh S. Cutler 6th Plymouth 1/28/2015 Michael D. Brady Second Plymouth and Bristol 2/4/2015 Brian R. Mannal 2nd Barnstable 2/3/2015 Edward F. Coppinger 10th Suffolk 1/29/2015 Antonio F. D. Cabral 13th Bristol 2/3/2015 Carolyn C. Dykema 8th Middlesex 1/30/2015 Kay Khan 11th Middlesex 2/3/2015 Keiko M. Orrall 12th Bristol 1/27/2015 1 of 2 Jay D. Livingstone 8th Suffolk 9/17/2019 Jeffrey N. Roy 10th Norfolk 9/17/2019 Richard J. Ross Norfolk, Bristol and Middlesex 9/17/2019 Tricia Farley-Bouvier 3rd Berkshire 9/17/2019 Aaron Vega 5th Hampden 9/17/2019 Chris Walsh 6th Middlesex 9/17/2019 Gailanne M. Cariddi 1st Berkshire 9/17/2019 Jason M. Lewis Fifth Middlesex 9/17/2019 Michael J. Finn 6th Hampden 9/17/2019 John W. Scibak 2nd Hampshire 9/17/2019 Jennifer L. Flanagan Worcester and Middlesex 9/17/2019 Michael O. Moore Second Worcester 9/17/2019 Byron Rushing 9th Suffolk 9/17/2019 Thomas P. Kennedy Second Plymouth and Bristol 9/17/2019 Claire D. Cronin 11th Plymouth 9/17/2019 Alice Hanlon Peisch 14th Norfolk 9/17/2019 Brian M. Ashe 2nd Hampden 9/17/2019 2 of 2 HOUSE DOCKET, NO. 1591 FILED ON: 1/15/2015 HOUSE . No. 1287 By Mr. Fernandes of Milford, a petition (accompanied by bill, House, No. 1287) of John V. Fernandes and others relative to the procedures for access to email of decedents. The Judiciary. The Commonwealth of Massachusetts _______________ In the One Hundred and Eighty-Ninth General Court (2015-2016) _______________ An Act relative to access to a decedent's electronic mail accounts. Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows: 1 SECTION 1. Subsection (a) of section 3-715 of chapter 190B of the General Laws, as 2 appearing in the 2010 Official Edition, is hereby amended by adding the following paragraph: 3 (28) gain reasonable access to the contents of an electronic mail account of the decedent 4 upon receipt by the electronic mail service provider of: (i) a notarized written request for such 5 access made by the personal representative, accompanied by a copy of the death certificate and a 6 certified copy of the letter of appointment as personal representative; or (ii) an order of the 7 probate court that has jurisdiction over the estate of the decedent. The electronic mail service 8 provider shall provide access to the requested records within 60 days of receipt of the request. 9 Failure of the provider to comply within said 60 days shall be a violation of this paragraph, 10 entitling the requestor to apply for an appropriate order of the court directing compliance. This 11 paragraph shall supersede provisions in the electronic mail service provider’s contractual 12 limitations, terms and conditions or privacy policy; provided, however, that access to the 13 contents of an electronic mail account shall not be provided if the provider shows, by clear and 1 of 3 14 convincing evidence, that it offered opt-out language, separate and distinct from the standard 15 agreement or terms of service, whereby the decedent affirmatively declined to have the 16 decedent’s electronic mail account released after death. The purpose of this act is to allow the 17 personal representative to have access to the contents of a decedent’s electronic mail account 18 (unless otherwise provided herein) solely for fiduciary purposes in performing his or her duties 19 as a personal representative and each such personal representative shall be subject to the duties 20 and responsibilities set forth in the Massachusetts uniform probate code and all other applicable 21 state law pertaining to personal representatives. The provisions of this act shall be subject to 22 copyright law and all other applicable federal law. Electronic mail service providers and their 23 officers, employees and agents are immune from liability for any action done in good faith in 24 compliance with this act. This paragraph shall not supersede language in the decedent’s will to 25 the contrary. For purposes of this paragraph, the following words shall, unless the context 26 otherwise requires, have the following meanings: 27 “Electronic mail account”, all electronic mail sent, received or created by an end-user of 28 electronic mail services provided by an electronic mail service provider that is stored or recorded 29 by the provider in the regular course of such services and any other electronic information stored 30 or recorded by such provider that is directly related to the electronic mail services provided to the 31 end-user by such provider, including, but not limited to, billing and payment information; 32 provided, however, that this definition shall not apply to accounts created, administered, or 33 hosted by an employer for an employee and intended to be used for professional purposes. 34 “Electronic mail service provider”, any person who is an intermediary in sending or 35 receiving electronic mail and who provides to end-users of electronic mail services the ability to 36 send or receive electronic mail. 2 of 3 37 SECTION 2. Said section 3-715 of said chapter 190B, as appearing, is hereby further 38 amended by striking out subsection (b) and inserting in place thereof the following subsection:- 39 (b) Except as restricted or otherwise provided by the will or by an order in a formal 40 proceeding and subject to the priorities stated in section 3-902, a special personal representative 41 acting reasonably for the benefit of the interested persons, may properly exercise only those 42 powers set forth in subsections (1), (2), (3), (5), (7), (12), (15), (18), (19), (20), (21), (22), (24), 43 (26) and (28) of paragraph (a). 44 SECTION 3. Paragraph (28) of subsection (a) and subsection (b) of section 3-715 of 45 chapter 190B of the General Laws shall apply to: (i) all electronic mail accounts existing on or 46 after the effective date of this act; and (ii) all instances in which the electronic mail account 47 contents have been preserved by the electronic mail service provider as of the effective date of 48 this act. 3 of 3.