SENATE DOCKET, NO. 1778        FILED ON: 1/21/2011

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 754

The Commonwealth of Massachusetts

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PRESENTED BY:

Cynthia S. Creem

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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 allowing access to a decedent's electronic mail accounts.

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PETITION OF:

SENATE DOCKET, NO. 1778        FILED ON: 1/21/2011

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 754

The Commonwealth of Massachusetts

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In the Year Two Thousand Eleven

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An Act allowing 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:
 

                SECTION 1. Paragraph (a) of section 3-715 of chapter 190B of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by adding at the end thereof the following sub-section:-

                (28) gain reasonable access to the contents of the electronic mail account, as defined in section 5A of chapter 195, of the decedent upon receipt by the electronic mail service provider of: (i) a written request for such access made by the personal representative, accompanied by a copy of the death certificate and a certified copy of the certificate of appointment as personal representative; or (ii) an order of the probate court that has jurisdiction over the estate of the decedent.  The electronic mail service provider, as defined in section 5A of chapter 195, shall provide the requested records within 60 days of receipt of the request.  Failure of the provider to comply within 60 days is a violation of this sub-section, entitling the requestor to apply for an appropriate order of the court directing compliance.  This sub-section shall supersede provisions in the electronic mail service provider’s contractual limitations, terms and conditions, or privacy policy, but it shall not supersede language in the decedent’s to the contrary.  Nothing herein shall prevent a provider from proving by clear and convincing evidence that it provided opt-out language whereby the decedent affirmatively declined, or stated explicitly that the decedent declined, to have the decedent’s electronic mail records released after death.  This sub-section shall apply to: (i) all electronic mail accounts existing as of the effective date of this sub-section, and (ii) all instances in which the electronic mail account contents have been preserved by the electronic mail service provider as of the effective date of this sub-section.

                SECTION 2. Section 5A of chapter 195 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by adding at the end thereof the following paragraph:-

(5) power to access the contents of the electronic mail account of the decedent upon receipt by the electronic mail service provider of: (i) a written request for such access made by the executor or administrator, accompanied by a copy of the death certificate and a certified copy of the certificate of appointment as executor or administrator; or (ii) an order of the probate court that has jurisdiction over the estate of the decedent.

                The electronic mail service provider shall provide the requested records within 60 days of receipt of the request.  Failure of the provider to comply within 60 days is a violation of this paragraph, entitling the requestor to apply for an appropriate order of the court directing compliance.  This paragraph shall supersede provisions in the electronic mail service provider’s contractual limitations, terms and conditions, or privacy policy, but it shall not supersede language in the decedent’s to the contrary.  Nothing herein shall prevent a provider from proving by clear and convincing evidence that it provided opt-out language whereby the decedent affirmatively declined, or stated explicitly that the decedent declined, to have the decedent’s electronic mail records released after death.  This paragraph shall apply to: (i) all electronic mail accounts existing as of the effective date of this sub-section, and (ii) all instances in which the electronic mail account contents have been preserved by the electronic mail service provider as of the effective date of this sub-section.

For purposes of this subsection, the following words shall, unless the context otherwise requires, have the following meanings:

                “Electronic mail service provider”, any person who is an intermediary in sending or receiving electronic mail, and who provides to end-users of electronic mail services the ability to send or receive electronic mail.

                “Electronic mail account”, all electronic mail sent or received by an end-user of electronic mail services provided by an electronic mail service provider that is stored or recorded by the provider in the regular course of such services and any other electronic information stored or recorded by such provider that is directly related to the electronic mail services provided to the end-user by such provider, including, but not limited to, billing and payment information.