S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         5438
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                     May 14, 2015
                                      ___________
       Introduced  by  Sen.  GOLDEN -- read twice and ordered printed, and when
         printed to be committed to the Committee on Judiciary
       AN ACT to amend the estates, powers and trust law,  the  mental  hygiene
         law, the surrogate's court procedure act and the general business law,
         in relation to decedent's electronic mail service accounts
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Subparagraph 22 of paragraph (b) of section 11-1.1  of  the
    2  estates, powers and trusts law, as renumbered by chapter 904 of the laws
    3  of  1973,  is renumbered subparagraph 23 and a new paragraph 22 is added
    4  to read as follows:
    5    (22) WITH RESPECT TO A DECEDENT'S ELECTRONIC MAIL SERVICE ACCOUNTS, TO
    6  ENGAGE IN ACTIVITIES AUTHORIZED BY SECTION 11-1.12 OF THIS PART.
    7    S 2. The estates, powers and trusts law is amended  by  adding  a  new
    8  section 11-1.12 to read as follows:
    9    S 11-1.12 LIMITED POWER OF FIDUCIARY WITH REGARD TO A DECEDENT'S ELEC-
   10  TRONIC MAIL SERVICE ACCOUNT.
   11    (A)  DEFINITIONS.  AS  USED IN THIS SECTION, THE FOLLOWING TERMS SHALL
   12  HAVE THE FOLLOWING MEANINGS:
   13    1. "ACCOUNT HOLDER" MEANS A NATURAL PERSON WHO  HAS  ENTERED  INTO  AN
   14  AGREEMENT  WITH AN ELECTRONIC MAIL SERVICE PROVIDER FOR THE PROVISION OF
   15  AN ELECTRONIC MAIL ACCOUNT.
   16    2. "CATALOG OF ELECTRONIC MAIL MESSAGES" MEANS A LIST OF  EVERY  ELEC-
   17  TRONIC  MAIL MESSAGE RECEIVED BY, SENT FROM, AND STORED IN AN ELECTRONIC
   18  MAIL SERVICE ACCOUNT THAT INCLUDES THE HEADER INFORMATION FOR EACH ELEC-
   19  TRONIC MAIL MESSAGE ALONG WITH THE CORRESPONDING DATE THAT SUCH  MESSAGE
   20  WAS SENT OR RECEIVED.
   21    3.  "COMMERCIAL  ELECTRONIC  MAIL  MESSAGE"  MEANS  AN ELECTRONIC MAIL
   22  MESSAGE SENT IN THE ORDINARY COURSE OF BUSINESS THAT IS NOT A  CONFIDEN-
   23  TIAL ELECTRONIC MAIL MESSAGE, AND THAT:
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD08430-01-5
       S. 5438                             2
    1    (I)  FACILITATES, COMPLETES, OR CONFIRMS A COMMERCIAL TRANSACTION THAT
    2  THE RECIPIENT HAS PREVIOUSLY AGREED TO ENTER INTO WITH THE SENDER;
    3    (II)  PROVIDES  WARRANTY  INFORMATION,  PRODUCT RECALL INFORMATION, OR
    4  SAFETY OR SECURITY INFORMATION WITH RESPECT TO A COMMERCIAL  PRODUCT  OR
    5  SERVICE USED OR PURCHASED BY THE RECIPIENT;
    6    (III)  PROVIDES  (I)  NOTIFICATION CONCERNING A CHANGE IN THE TERMS OR
    7  FEATURES OF;
    8    (II) NOTIFICATION OF A CHANGE IN THE RECIPIENT'S  STANDING  OR  STATUS
    9  WITH RESPECT TO;
   10    (III)  AT  REGULAR  PERIODIC  INTERVALS,  ACCOUNT BALANCE INFORMATION,
   11  BILLING INFORMATION, OR OTHER TYPE OF ACCOUNT STATEMENT WITH RESPECT TO,
   12  A SUBSCRIPTION, MEMBERSHIP, ACCOUNT, LOAN, OR COMPARABLE ONGOING COMMER-
   13  CIAL RELATIONSHIP INVOLVING THE ONGOING PURCHASE OR USE BY THE RECIPIENT
   14  OF PRODUCTS OR SERVICES OFFERED BY THE SENDER; OR
   15    (IV)  DELIVERS  GOODS  OR  SERVICES,  INCLUDING  PRODUCT  UPDATES   OR
   16  UPGRADES, THAT THE RECIPIENT IS ENTITLED TO RECEIVE UNDER THE TERMS OF A
   17  TRANSACTION  THAT THE RECIPIENT HAS PREVIOUSLY AGREED TO ENTER INTO WITH
   18  THE SENDER.
   19    4. "CONFIDENTIAL ELECTRONIC MAIL MESSAGE"  MEANS  AN  ELECTRONIC  MAIL
   20  MESSAGE  THAT  IS  PRIVILEGED DUE TO THE RELATIONSHIP BETWEEN THE SENDER
   21  AND RECIPIENT AND NOT SUBJECT TO DISCLOSURE PURSUANT TO THE LAWS OF THIS
   22  STATE WITHOUT A WAIVER OF SUCH PRIVILEGE.
   23    5. "CONTENT" MEANS THE SUBSTANCE OF AN ELECTRONIC MAIL MESSAGE AND ANY
   24  ELECTRONIC DATA ATTACHED TO SUCH  ELECTRONIC  MAIL  MESSAGE  OTHER  THAN
   25  HEADER INFORMATION.
   26    6.  "ELECTRONIC" MEANS OF OR RELATING TO TECHNOLOGY HAVING ELECTRICAL,
   27  DIGITAL, MAGNETIC, WIRELESS, OPTICAL, ELECTROMAGNETIC, OR SIMILAR  CAPA-
   28  BILITIES.
   29    7.  "ELECTRONIC DATA" MEANS ANY DATA, IMAGES, PICTURES, SOUNDS, VIDEO,
   30  OR WRITING PRODUCED OR STORED BY ELECTRONIC MEANS AND CAPABLE  OF  BEING
   31  ACCURATELY  REPRODUCED  IN  FORMS PERCEPTIBLE BY HUMAN SENSORY CAPABILI-
   32  TIES.
   33    8. "ELECTRONIC MAIL ACCOUNT" MEANS AN ACCOUNT, OTHER THAN  AN  ACCOUNT
   34  PROVIDED  BY  AN EMPLOYER TO AN EMPLOYEE WITHIN THE SCOPE OF EMPLOYMENT,
   35  WITH AN ASSOCIATED ELECTRONIC MAIL ADDRESS FROM  WHICH  ELECTRONIC  MAIL
   36  MESSAGES  MAY  BE SENT AND STORED, AND TO WHICH ELECTRONIC MAIL MESSAGES
   37  MAY BE RECEIVED AND STORED.
   38    9. "ELECTRONIC MAIL ADDRESS" MEANS A DESTINATION,  COMMONLY  EXPRESSED
   39  AS  A  STRING OF CHARACTERS, CONSISTING OF A UNIQUE USER NAME OR MAILBOX
   40  AND A REFERENCE TO AN INTERNET DOMAIN,  WHETHER  OR  NOT  DISPLAYED,  TO
   41  WHICH ELECTRONIC MAIL CAN BE SENT OR DELIVERED.
   42    10.  "ELECTRONIC MAIL MESSAGE" MEANS ELECTRONIC DATA THAT IS TRANSMIT-
   43  TED FROM ONE ELECTRONIC MAIL ADDRESS TO ANOTHER ELECTRONIC MAIL  ADDRESS
   44  FOR THE PURPOSE OF COMMUNICATION.
   45    11. "ELECTRONIC MAIL SERVICE PROVIDER" MEANS A NATURAL PERSON OR ENTI-
   46  TY  THAT,  IN  THE  REGULAR  COURSE  OF BUSINESS, OFFERS ELECTRONIC MAIL
   47  ACCOUNTS TO THE GENERAL PUBLIC.
   48    12. "ENTITY" MEANS AN ASSOCIATION, COMPANY, FIRM, PARTNERSHIP,  CORPO-
   49  RATION,  LIMITED  LIABILITY  COMPANY,  SOLE PROPRIETORSHIP AND ANY OTHER
   50  FORM OF LEGALLY RECOGNIZED ENTITY, OTHER THAN A STATE OR  LOCAL  GOVERN-
   51  MENT.
   52    13.  "HEADER  INFORMATION" MEANS THE ELECTRONIC DATA PROVIDING SOURCE,
   53  DESTINATION, ROUTING AND DELIVERY DATE INFORMATION THAT IS  ATTACHED  TO
   54  AN  ELECTRONIC  MAIL  MESSAGE, INCLUDING THE ORIGINATING DOMAIN NAME AND
   55  ORIGINATING ELECTRONIC MAIL ADDRESS,  AND  ANY  OTHER  INFORMATION  THAT
       S. 5438                             3
    1  APPEARS  IN  THE  LINE  IDENTIFYING, OR PURPORTING TO IDENTIFY, A PERSON
    2  INITIATING THE MESSAGE.
    3    14. "INDIVIDUAL" MEANS A NATURAL PERSON.
    4    15.  "PERSONAL  ELECTRONIC  MAIL  MESSAGE"  MEANS  AN  ELECTRONIC MAIL
    5  MESSAGE THAT IS EITHER SENT FROM ONE INDIVIDUAL  TO  ANOTHER  INDIVIDUAL
    6  THAT  DOES  NOT  INCLUDE  ANY  ELEMENTS  OF A COMMERCIAL ELECTRONIC MAIL
    7  MESSAGE OR A CONFIDENTIAL ELECTRONIC MAIL MESSAGE, REGARDLESS OF WHETHER
    8  THE MESSAGE IS SENT DIRECTLY BY THE  SENDER  OR  FORWARDED  BY  OR  SENT
    9  THROUGH  A SERVICE THAT OFFERS MEMBERS OR SUBSCRIBERS THE OPPORTUNITY TO
   10  COMMUNICATE USING ELECTRONIC MAIL MESSAGES.
   11    (B) REQUEST FOR A CATALOG OF ELECTRONIC MAIL MESSAGES. UNLESS EXPRESS-
   12  LY PROHIBITED IN THE WILL OR OTHER INSTRUMENT,  THE  PERSONAL  REPRESEN-
   13  TATIVE  OR OTHER PERSON ACTING IN A FIDUCIARY CAPACITY WITH RESPECT TO A
   14  DECEDENT'S ESTATE, HEREINAFTER CALLED THE "FIDUCIARY", SHALL BE  AUTHOR-
   15  IZED TO REQUEST A CATALOG OF ELECTRONIC MAIL MESSAGES AND OTHER INFORMA-
   16  TION  PERTAINING  TO THE DECEDENT'S ELECTRONIC MAIL SERVICE ACCOUNT WHEN
   17  SUCH REQUEST IS NECESSARY FOR THE ADMINISTRATION OF THE ESTATE.  SUCH  A
   18  REQUEST SHALL NOT INCLUDE A REQUEST FOR DISCLOSURE OF THE CONTENT OF ANY
   19  ELECTRONIC  MAIL  MESSAGE  IN  SUCH ACCOUNT OR ANY OTHER INFORMATION FOR
   20  WHICH DISCLOSURE TO ANY PERSON IS NOT  AUTHORIZED  PURSUANT  TO  FEDERAL
   21  LAW.
   22    (C)  REQUEST  FOR  DISCLOSURE  OF THE CONTENT OF COMMERCIAL ELECTRONIC
   23  MAIL MESSAGES. AFTER RECEIPT AND REVIEW OF  THE  CATALOG  OF  ELECTRONIC
   24  MAIL  MESSAGES  RECEIVED  FROM  THE  DECEDENT'S  ELECTRONIC MAIL SERVICE
   25  PROVIDER, THE FIDUCIARY MAY PETITION THE COURT FOR AN ORDER PURSUANT  TO
   26  SECTION  TWO  THOUSAND  ONE  HUNDRED  SIXTEEN  OF THE SURROGATE'S COURTS
   27  PROCEDURE ACT  TO  REQUIRE  THE  ELECTRONIC  MAIL  SERVICE  PROVIDER  TO
   28  DISCLOSE  THE  HEADER AND CONTENT OF SPECIFIC COMMERCIAL ELECTRONIC MAIL
   29  MESSAGES WHEN SUCH DISCLOSURE IS NECESSARY FOR THE ADMINISTRATION OF THE
   30  ESTATE. ANY ORDER OF THE COURT SHALL REQUIRE THE ESTATE TO INDEMNIFY THE
   31  ELECTRONIC MAIL SERVICE PROVIDER FROM ALL LIABILITY  IN  COMPLYING  WITH
   32  SUCH ORDER.
   33    (D) PERSONAL ELECTRONIC MAIL MESSAGES AND CONFIDENTIAL ELECTRONIC MAIL
   34  MESSAGES.  THE  FIDUCIARY  IS  NOT  AUTHORIZED  TO PETITION THE COURT TO
   35  REQUEST DISCLOSURE OF  THE  CONTENT  OF  ANY  PERSONAL  ELECTRONIC  MAIL
   36  MESSAGES  OR CONFIDENTIAL ELECTRONIC MAIL MESSAGES LISTED IN ANY CATALOG
   37  OF ELECTRONIC MAIL MESSAGES RECEIVED BY SUCH FIDUCIARY.
   38    (E) DECEDENT'S CONSENT TO THE DISCLOSURE OF CONTENT OF ELECTRONIC MAIL
   39  MESSAGES. WHEN, IN ACCORDANCE WITH SECTION ONE HUNDRED SIXTY-SEVEN-A  OF
   40  THE  GENERAL BUSINESS LAW, AN ELECTRONIC MAIL SERVICE PROVIDER OFFERED A
   41  DECEDENT THE OPPORTUNITY TO CONSENT TO AND AUTHORIZE THE  DISCLOSURE  OF
   42  THE  CONTENT  OF THE ELECTRONIC MAIL MESSAGES STORED IN HIS OR HER ELEC-
   43  TRONIC MAIL SERVICES ACCOUNT TO AN INDIVIDUAL AND THE DECEDENT EXERCISED
   44  SUCH OPTION IN FAVOR OF AN INDIVIDUAL WHO IS SERVING AS A FIDUCIARY  FOR
   45  THE  DECEDENT'S  ESTATE,  SUCH  INDIVIDUAL  SHALL HAVE THE POWER TO SEEK
   46  DISCLOSURE OF THE CONTENT OF ANY ELECTRONIC MAIL MESSAGES STORED IN  THE
   47  DECEDENT'S  ELECTRONIC  MAIL  SERVICE ACCOUNT WITHOUT FIRST OBTAINING AN
   48  ORDER FROM THE COURT.
   49    (F) TIME PERIOD  FOR  PRODUCTION  OF  A  CATALOG  OF  ELECTRONIC  MAIL
   50  MESSAGES.   WHEN A REQUEST FOR A CATALOG OF ELECTRONIC MAIL MESSAGES HAS
   51  BEEN MADE PURSUANT TO THIS SECTION, AN ELECTRONIC MAIL SERVICES PROVIDER
   52  MAY REQUIRE THE FIDUCIARY TO PROVIDE A COPY OF THE ORDER  OF  THE  COURT
   53  APPOINTING  HIM OR HER FIDUCIARY OF THE DECEDENT'S ESTATE, A COPY OF THE
   54  DECEDENT'S DEATH CERTIFICATE, AND ANY OTHER INFORMATION THAT  IS  NECES-
   55  SARY  FOR SUCH SERVICE PROVIDER TO COMPLETE THE REQUEST. UPON RECEIPT OF
   56  SUCH INFORMATION, THE ELECTRONIC MAIL SERVICE PROVIDER SHALL PROVIDE THE
       S. 5438                             4
    1  REQUESTING FIDUCIARY WITH A CATALOG OF ELECTRONIC MAIL  MESSAGES  WITHIN
    2  THIRTY DAYS.
    3    S  3.  Paragraph  20 of subdivision (a) of section 81.21 of the mental
    4  hygiene law is renumbered paragraph 21 and a new paragraph 20  is  added
    5  to read as follows:
    6    20.  WITH RESPECT TO AN INCAPACITATED PERSON'S ELECTRONIC MAIL SERVICE
    7  ACCOUNTS, TO ENGAGE IN ACTIVITIES AUTHORIZED BY SECTION  81.45  OF  THIS
    8  ARTICLE; AND
    9    S  4.  Paragraph  19 of subdivision (a) of section 81.21 of the mental
   10  hygiene law, as added by chapter 438 of the laws of 2004, is amended  to
   11  read as follows.
   12    19. pay bills after the death of the incapacitated person provided the
   13  authority  existed  to  pay  such bills prior to death until a temporary
   14  administrator or executor is appointed; [and]
   15    S 5. Subdivision (g) of section 81.44 of the mental  hygiene  law,  as
   16  added  by chapter 175 of the laws of 2008, is relettered subdivision (h)
   17  and amended and a new subdivision (g) is added to read as follows:
   18    (G) WITHIN ONE HUNDRED FIFTY DAYS OF THE INCAPACITATED PERSON'S DEATH,
   19  THE GUARDIAN  SHALL  SERVE  UPON  THE  PERSONAL  REPRESENTATIVE  OF  THE
   20  DECEDENT'S ESTATE OR WHERE THERE IS NO PERSONAL REPRESENTATIVE, UPON THE
   21  PUBLIC  ADMINISTRATOR OR CHIEF FISCAL OFFICER, COPIES OF ALL CATALOGS OF
   22  ELECTRONIC MAIL MESSAGES RECEIVED BY THE GUARDIAN  PURSUANT  TO  SECTION
   23  82.21  OF  THIS  ARTICLE  AND  COPIES  OF  ALL  ELECTRONIC MAIL MESSAGES
   24  DISCLOSED TO THE GUARDIAN PURSUANT TO SECTION  81.45  OF  THIS  ARTICLE.
   25  THERE SHALL BE NO EXTENSION OF THE TIME TO FILE A FINAL REPORT EXCEPT BY
   26  ORDER OF THE COURT.
   27    (h) Upon failure of the guardian to comply with subdivisions (d) [or],
   28  (f)  OR  (G)  of  this  section,  any  person entitled to notice of this
   29  proceeding may file a petition to compel the  guardian  to  account,  to
   30  suspend and/or remove the guardian, and to take and state the guardian's
   31  account.
   32    S  6.  The mental hygiene law is amended by adding a new section 81.45
   33  to read as follows:
   34    S 81.45 LIMITED POWER OF THE GUARDIAN  TO  OBTAIN  DISCLOSURE  OF  THE
   35  CONTENT OF THE INCOMPETENT PERSON'S ELECTRONIC MAIL MESSAGES.
   36    (A)  DEFINITIONS.  AS  USED IN THIS SECTION, THE FOLLOWING TERMS SHALL
   37  HAVE THE FOLLOWING MEANINGS:
   38    1. "ACCOUNT HOLDER" MEANS A NATURAL PERSON WHO  HAS  ENTERED  INTO  AN
   39  AGREEMENT  WITH AN ELECTRONIC MAIL SERVICE PROVIDER FOR THE PROVISION OF
   40  AN ELECTRONIC MAIL ACCOUNT.
   41    2. "CATALOG OF ELECTRONIC MAIL MESSAGES" MEANS A LIST OF  EVERY  ELEC-
   42  TRONIC  MAIL MESSAGE RECEIVED BY, SENT FROM, AND STORED IN AN ELECTRONIC
   43  MAIL SERVICE ACCOUNT THAT INCLUDES THE HEADER INFORMATION FOR EACH ELEC-
   44  TRONIC MAIL MESSAGE ALONG WITH THE CORRESPONDING DATE THAT SUCH  MESSAGE
   45  WAS SENT OR RECEIVED.
   46    3.  "COMMERCIAL  ELECTRONIC  MAIL  MESSAGE"  MEANS  AN ELECTRONIC MAIL
   47  MESSAGE SENT IN THE ORDINARY COURSE OF BUSINESS THAT IS NOT A  CONFIDEN-
   48  TIAL ELECTRONIC MAIL MESSAGE, AND THAT:
   49    (I)  FACILITATES, COMPLETES, OR CONFIRMS A COMMERCIAL TRANSACTION THAT
   50  THE RECIPIENT HAS PREVIOUSLY AGREED TO ENTER INTO WITH THE SENDER;
   51    (II) PROVIDES WARRANTY INFORMATION,  PRODUCT  RECALL  INFORMATION,  OR
   52  SAFETY  OR  SECURITY INFORMATION WITH RESPECT TO A COMMERCIAL PRODUCT OR
   53  SERVICE USED OR PURCHASED BY THE RECIPIENT;
   54    (III) PROVIDES (I) NOTIFICATION CONCERNING A CHANGE IN  THE  TERMS  OR
   55  FEATURES OF;
       S. 5438                             5
    1    (II)  NOTIFICATION  OF  A CHANGE IN THE RECIPIENT'S STANDING OR STATUS
    2  WITH RESPECT TO;
    3    (III)  AT  REGULAR  PERIODIC  INTERVALS,  ACCOUNT BALANCE INFORMATION,
    4  BILLING INFORMATION, OR OTHER TYPE OF ACCOUNT STATEMENT WITH RESPECT TO,
    5  A SUBSCRIPTION, MEMBERSHIP, ACCOUNT, LOAN, OR COMPARABLE ONGOING COMMER-
    6  CIAL RELATIONSHIP INVOLVING THE ONGOING PURCHASE OR USE BY THE RECIPIENT
    7  OF PRODUCTS OR SERVICES OFFERED BY THE SENDER; OR
    8    (IV)  DELIVERS  GOODS  OR  SERVICES,  INCLUDING  PRODUCT  UPDATES   OR
    9  UPGRADES, THAT THE RECIPIENT IS ENTITLED TO RECEIVE UNDER THE TERMS OF A
   10  TRANSACTION  THAT THE RECIPIENT HAS PREVIOUSLY AGREED TO ENTER INTO WITH
   11  THE SENDER.
   12    4. "CONFIDENTIAL ELECTRONIC MAIL MESSAGE" MEANS  AND  ELECTRONIC  MAIL
   13  MESSAGE  THAT  IS  PRIVILEGED DUE TO THE RELATIONSHIP BETWEEN THE SENDER
   14  AND RECIPIENT AND NOT SUBJECT TO DISCLOSURE PURSUANT TO THE LAWS OF THIS
   15  STATE WITHOUT A WAIVER OF SUCH PRIVILEGE.
   16    5. "CONTENT" MEANS THE SUBSTANCE OF AN ELECTRONIC MAIL MESSAGE AND ANY
   17  ELECTRONIC DATA ATTACHED TO SUCH  ELECTRONIC  MAIL  MESSAGE  OTHER  THAN
   18  HEADER INFORMATION.
   19    6.  "ELECTRONIC" MEANS OF OR RELATING TO TECHNOLOGY HAVING ELECTRICAL,
   20  DIGITAL, MAGNETIC, WIRELESS, OPTICAL, ELECTROMAGNETIC, OR SIMILAR  CAPA-
   21  BILITIES.
   22    7.  "ELECTRONIC DATA" MEANS ANY DATA, IMAGES, PICTURES, SOUNDS, VIDEO,
   23  OR WRITING PRODUCED OR STORED BY ELECTRONIC MEANS AND CAPABLE  OF  BEING
   24  ACCURATELY  REPRODUCED  IN  FORMS PERCEPTIBLE BY HUMAN SENSORY CAPABILI-
   25  TIES.
   26    8. "ELECTRONIC MAIL ACCOUNT" MEANS AN ACCOUNT, OTHER THAN  AN  ACCOUNT
   27  PROVIDED  BY  AN EMPLOYER TO AN EMPLOYEE WITHIN THE SCOPE OF EMPLOYMENT,
   28  WITH AN ASSOCIATED ELECTRONIC MAIL ADDRESS FROM  WHICH  ELECTRONIC  MAIL
   29  MESSAGES  MAY  BE SENT AND STORED, AND TO WHICH ELECTRONIC MAIL MESSAGES
   30  MAY BE RECEIVED AND STORED.
   31    9. "ELECTRONIC MAIL ADDRESS" MEANS A DESTINATION,  COMMONLY  EXPRESSED
   32  AS  A  STRING OF CHARACTERS, CONSISTING OF A UNIQUE USER NAME OR MAILBOX
   33  AND A REFERENCE TO AN INTERNET DOMAIN,  WHETHER  OR  NOT  DISPLAYED,  TO
   34  WHICH ELECTRONIC MAIL CAN BE SENT OR DELIVERED.
   35    10.  "ELECTRONIC MAIL MESSAGE" MEANS ELECTRONIC DATA THAT IS TRANSMIT-
   36  TED FROM ONE ELECTRONIC MAIL ADDRESS TO ANOTHER ELECTRONIC MAIL  ADDRESS
   37  FOR THE PURPOSE OF COMMUNICATION.
   38    11. "ELECTRONIC MAIL SERVICE PROVIDER" MEANS A NATURAL PERSON OR ENTI-
   39  TY  THAT,  IN  THE  REGULAR  COURSE  OF BUSINESS, OFFERS ELECTRONIC MAIL
   40  ACCOUNTS TO THE GENERAL PUBLIC.
   41    12. "ENTITY" MEANS AN ASSOCIATION, COMPANY, FILM, PARTNERSHIP,  CORPO-
   42  RATION,  LIMITED  LIABILITY  COMPANY,  SOLE PROPRIETORSHIP AND ANY OTHER
   43  FORM OF LEGALLY RECOGNIZED ENTITY, OTHER THAN STATE OR LOCAL GOVERNMENT.
   44    13. "HEADER INFORMATION" MEANS THE ELECTRONIC DATA  PROVIDING  SOURCE,
   45  DESTINATION,  ROUTING  AND DELIVERY DATE INFORMATION THAT IS ATTACHED TO
   46  AN ELECTRONIC MAIL MESSAGE, INCLUDING THE ORIGINATING  DOMAIN  NAME  AND
   47  ORIGINATING  ELECTRONIC  MAIL  ADDRESS  AND  ANY  OTHER INFORMATION THAT
   48  APPEARS IN THE LINE IDENTIFYING, OR PURPORTING  TO  IDENTIFY,  A  PERSON
   49  INITIATING THE MESSAGE.
   50    14. "INDIVIDUAL" MEANS A NATURAL PERSON.
   51    15.  "PERSONAL  ELECTRONIC  MAIL  MESSAGE"  MEANS  AN  ELECTRONIC MAIL
   52  MESSAGE THAT IS EITHER SENT FROM ONE INDIVIDUAL  TO  ANOTHER  INDIVIDUAL
   53  THAT  DOES  NOT  INCLUDE  ANY  ELEMENTS  OF A COMMERCIAL ELECTRONIC MAIL
   54  MESSAGE OR A CONFIDENTIAL ELECTRONIC MAIL MESSAGE, REGARDLESS OF WHETHER
   55  THE MESSAGE IS SENT DIRECTLY BY THE  SENDER  OR  FORWARDED  BY  OR  SENT
       S. 5438                             6
    1  THROUGH  A  SERVICE THAT OFFERS MEMBERS OR SUBSCRIBES THE OPPORTUNITY TO
    2  COMMUNICATE USING ELECTRONIC MAIL MESSAGES.
    3    (B)  REQUEST FOR A CATALOG OF ELECTRONIC MAIL MESSAGES. THE INDIVIDUAL
    4  WHO HAS BEEN APPOINTED GUARDIAN FOR AN  INCAPACITATED  PERSON  SHALL  BE
    5  AUTHORIZED  TO  REQUEST  A CATALOG OF ELECTRONIC MAIL MESSAGES AND OTHER
    6  INFORMATION PERTAINING TO SUCH INCAPACITATED  PERSON'S  ELECTRONIC  MAIL
    7  SERVICE  ACCOUNT  WHEN  SUCH REQUEST IS NECESSARY OR APPROPRIATE FOR THE
    8  PROPER MANAGEMENT OF THE INCAPACITATED PERSON'S  PROPERTY  OR  FINANCIAL
    9  AFFAIRS.  SUCH  A  REQUEST SHALL NOT INCLUDE A REQUEST FOR DISCLOSURE OF
   10  THE CONTENTS OF ANY ELECTRONIC MAIL MESSAGE IN SUCH ACCOUNT OR ANY OTHER
   11  INFORMATION FOR WHICH DISCLOSURE TO ANY PERSON IS NOT AUTHORIZED  PURSU-
   12  ANT TO FEDERAL LAW.
   13    (C)  REQUEST  FOR  DISCLOSURE  OF THE CONTENT OF COMMERCIAL ELECTRONIC
   14  MAIL MESSAGES. TO THE EXTENT THAT IT IS CONSISTENT  WITH  THE  AUTHORITY
   15  OTHERWISE  GRANTED  BY THE COURT A GUARDIAN, AFTER RECEIPT AND REVIEW OF
   16  THE CATALOG OF ELECTRONIC MAIL MESSAGES RECEIVED FROM THE  INCAPACITATED
   17  PERSON'S  ELECTRONIC MAIL SERVICE PROVIDER, MAY COMMENCE A PROCEEDING IN
   18  THE COURT WHICH APPOINTED THE GUARDIAN TO REQUIRE THE DISCLOSURE OF  THE
   19  HEADER  AND CONTENT OF SPECIFIC COMMERCIAL ELECTRONIC MAIL MESSAGES WHEN
   20  SUCH DISCLOSURE IS NECESSARY OR APPROPRIATE FOR THE PROPER MANAGEMENT OF
   21  THE INCAPACITATED PERSON'S PROPERTY OR FINANCIAL AFFAIRS. ANY  ORDER  OF
   22  THE COURT SHALL NOT AUTHORIZE THE DISCLOSURE OF PERSONAL ELECTRONIC MAIL
   23  MESSAGES  OR CONFIDENTIAL ELECTRONIC MAIL MESSAGES AND SHALL REQUIRE THE
   24  GUARDIAN TO INDEMNIFY THE ELECTRONIC  MAIL  SERVICE  PROVIDER  FROM  ALL
   25  LIABILITY IN COMPLYING WITH SUCH ORDER.
   26    (D) PERSONAL ELECTRONIC MAIL MESSAGES AND CONFIDENTIAL ELECTRONIC MAIL
   27  MESSAGES. A GUARDIAN IS NOT AUTHORIZED TO PETITION THE COURT TO PRAY FOR
   28  AN  ORDER REQUIRING DISCLOSURE OF THE CONTENT OF ANY PERSONAL ELECTRONIC
   29  MAIL MESSAGES OR CONFIDENTIAL ELECTRONIC MAIL  MESSAGES  LISTED  IN  ANY
   30  CATALOG OF ELECTRONIC MAIL MESSAGES RECEIVED BY SUCH GUARDIAN.
   31    S  7.  The  surrogate's court procedure act is amended by adding a new
   32  section 2116 to read as follows:
   33  S 2116. PROCEEDING BY FIDUCIARY TO COMPEL DISCLOSURE OF THE  CONTENT  OF
   34           COMMERCIAL ELECTRONIC MAIL MESSAGES
   35    1.  A  FIDUCIARY  WHO  IS IN RECEIPT OF THE CATALOG OF ELECTRONIC MAIL
   36  MESSAGES FROM AN ELECTRONIC  MAIL  ACCOUNT  HELD  BY  THE  DECEDENT  AND
   37  BELIEVES  THAT  THE  CONTENT OF ONE OR MORE OF THE COMMERCIAL ELECTRONIC
   38  MAIL MESSAGES LISTED IN SUCH CATALOG IS NECESSARY FOR THE ADMINISTRATION
   39  OF THE ESTATE MAY PRESENT TO THE COURT WHICH HAS JURISDICTION  OVER  THE
   40  ESTATE A PETITION SHOWING THE FACTS, INCLUDING THE NECESSITY FOR DISCLO-
   41  SURE, AND PRAYING THAT THE COURT ISSUE AN ORDER DIRECTING THE DISCLOSURE
   42  OF THE CONTENT OF SUCH ELECTRONIC MAIL MESSAGES.
   43    2. IF THE COURT IS SATISFIED THAT (A) AN ELECTRONIC MAIL MESSAGE LIST-
   44  ED  IN  THE  PETITION  IS A COMMERCIAL ELECTRONIC MAIL MESSAGE AND NOT A
   45  CONFIDENTIAL ELECTRONIC MAIL  MESSAGE  OR  A  PERSONAL  ELECTRONIC  MAIL
   46  MESSAGE,  AND (B) THE DISCLOSURE OF THE CONTENT OF SUCH COMMERCIAL ELEC-
   47  TRONIC MAIL MESSAGES IS NECESSARY FOR ADMINISTRATION OF THE ESTATE,  THE
   48  COURT SHALL ISSUE AN ORDER DIRECTING THE DISCLOSURE OF THE HEADER INFOR-
   49  MATION AND CONTENT OF SUCH COMMERCIAL ELECTRONIC MAIL MESSAGE AND INDEM-
   50  NIFYING THE ELECTRONIC MAIL SERVICE PROVIDER FROM ANY LIABILITY INCURRED
   51  DUE TO SUCH DISCLOSURE.
   52    3.  IF  THE  COURT  FINDS  THAT  THE  PETITION SEEKS DISCLOSURE OF THE
   53  CONTENT OF ONE OR MORE ELECTRONIC MAIL MESSAGES THAT ARE NOT  COMMERCIAL
   54  ELECTRONIC  MAIL  MESSAGES, THE COURT SHALL EXCLUDE SUCH ELECTRONIC MAIL
   55  MESSAGES FROM ITS ORDER.
       S. 5438                             7
    1    4. THE COURT SHALL  REQUIRE  A  BOND  NOTWITHSTANDING  THAT  THE  WILL
    2  AUTHORIZED AN EXECUTOR TO SERVE WITHOUT BOND.
    3    5.  THE TERMS "CATALOG OF ELECTRONIC MAIL MESSAGES," "COMMERCIAL ELEC-
    4  TRONIC  MAIL  MESSAGES,"  "CONFIDENTIAL   ELECTRONIC   MAIL   MESSAGES,"
    5  "CONTENT,"  "ELECTRONIC  MAIL ACCOUNT," "ELECTRONIC MAIL SERVICE PROVID-
    6  ER," AND "PERSONAL ELECTRONIC MAIL MESSAGES" SHALL HAVE THE SAME MEANING
    7  AS IN SECTION 11-1.12 OF THE ESTATES, POWERS AND TRUSTS LAW.
    8    S 8. The general business law is amended by adding a new article  10-C
    9  to read as follows:
   10                                 ARTICLE 10-C
   11                      ELECTRONIC MAIL ACCOUNT SERVICES
   12  SECTION 167. DEFINITIONS.
   13          167-A. ELECTRONIC   MAIL  ACCOUNTS;  CONSENT  TO  DISCLOSURE  OF
   14                  CONTENT AFTER DEATH.
   15          167-B. CONSENT TO THE DISCLOSURE OF COMMERCIAL  ELECTRONIC  MAIL
   16                  MESSAGE CONTENT.
   17          167-C. DISCLOSURE  OF ELECTRONIC MAIL MESSAGE CONTENT TO A NOMI-
   18                  NEE.
   19          167-D. ELECTRONIC MAIL ACCOUNTS; ACCOUNT TERMINATION UPON DEATH.
   20          167-E. CONSUMER EDUCATION.
   21    S 167. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL
   22  HAVE THE FOLLOWING MEANINGS:
   23    1. "ACCOUNT HOLDER" MEANS A NATURAL PERSON WHO  HAS  ENTERED  INTO  AN
   24  AGREEMENT  WITH AN ELECTRONIC MAIL SERVICE PROVIDER FOR THE PROVISION OF
   25  AN ELECTRONIC MAIL ACCOUNT.
   26    2. "CATALOG OF ELECTRONIC MAIL MESSAGES" MEANS A LIST OF  EVERY  ELEC-
   27  TRONIC  MAIL MESSAGE RECEIVED BY, SENT FROM, AND STORED IN AN ELECTRONIC
   28  MAIL SERVICE ACCOUNT THAT INCLUDES THE HEADER INFORMATION FOR EACH ELEC-
   29  TRONIC MAIL MESSAGE ALONG WITH THE CORRESPONDING DATE THAT SUCH  MESSAGE
   30  WAS SENT OR RECEIVED.
   31    3.  "COMMERCIAL  ELECTRONIC  MAIL  MESSAGE"  MEANS  AN ELECTRONIC MAIL
   32  MESSAGE SENT IN THE ORDINARY COURSE OF BUSINESS THAT IS NOT A  CONFIDEN-
   33  TIAL ELECTRONIC MAIL MESSAGE, AND THAT:
   34    (I)  FACILITATES, COMPLETES, OR CONFIRMS A COMMERCIAL TRANSACTION THAT
   35  THE RECIPIENT HAS PREVIOUSLY AGREED TO ENTER INTO WITH THE SENDER;
   36    (II) PROVIDES WARRANTY INFORMATION,  PRODUCT  RECALL  INFORMATION,  OR
   37  SAFETY  OR  SECURITY INFORMATION WITH RESPECT TO A COMMERCIAL PRODUCT OR
   38  SERVICE USED OR PURCHASED BY THE RECIPIENT;
   39    (III) PROVIDES (I) NOTIFICATION CONCERNING A CHANGE IN  THE  TERMS  OR
   40  FEATURES OF;
   41    (II)  NOTIFICATION  OF  A CHANGE IN THE RECIPIENT'S STANDING OR STATUS
   42  WITH RESPECT TO;
   43    (III) AT REGULAR  PERIODIC  INTERVALS,  ACCOUNT  BALANCE  INFORMATION,
   44  BILLING INFORMATION, OR OTHER TYPE OF ACCOUNT STATEMENT WITH RESPECT TO,
   45  A SUBSCRIPTION, MEMBERSHIP, ACCOUNT, LOAN, OR COMPARABLE ONGOING COMMER-
   46  CIAL RELATIONSHIP INVOLVING THE ONGOING PURCHASE OR USE BY THE RECIPIENT
   47  OF PRODUCTS OR SERVICES OFFERED BY THE SENDER; OR
   48    (IV)   DELIVERS  GOODS  OR  SERVICES,  INCLUDING  PRODUCT  UPDATES  OR
   49  UPGRADES, THAT THE RECIPIENT IS ENTITLED TO RECEIVE UNDER THE TERMS OF A
   50  TRANSACTION THAT THE RECIPIENT HAS PREVIOUSLY AGREED TO ENTER INTO  WITH
   51  THE SENDER.
   52    4.  "CONFIDENTIAL  ELECTRONIC  MAIL  MESSAGE" MEANS AN ELECTRONIC MAIL
   53  MESSAGE THAT IS PRIVILEGED DUE TO THE RELATIONSHIP  BETWEEN  THE  SENDER
   54  AND RECIPIENT AND NOT SUBJECT TO DISCLOSURE PURSUANT TO THE LAWS OF THIS
   55  STATE WITHOUT A WAIVER OF SUCH PRIVILEGE.
       S. 5438                             8
    1    5. "CONTENT" MEANS THE SUBSTANCE OF AN ELECTRONIC MAIL MESSAGE AND ANY
    2  ELECTRONIC  DATA  ATTACHED  TO  SUCH  ELECTRONIC MAIL MESSAGE OTHER THAN
    3  HEADER INFORMATION.
    4    6.  "ELECTRONIC" MEANS OF OR RELATING TO TECHNOLOGY HAVING ELECTRICAL,
    5  DIGITAL, MAGNETIC, WIRELESS, OPTICAL, ELECTROMAGNETIC, OR SIMILAR  CAPA-
    6  BILITIES.
    7    7.  "ELECTRONIC DATA" MEANS ANY DATA, IMAGES, PICTURES, SOUNDS, VIDEO,
    8  OR WRITING PRODUCED OR STORED BY ELECTRONIC MEANS AND CAPABLE  OF  BEING
    9  ACCURATELY  REPRODUCED  IN  FORMS PERCEPTIBLE BY HUMAN SENSORY CAPABILI-
   10  TIES.
   11    8. "ELECTRONIC MAIL ACCOUNT" MEANS AN ACCOUNT, OTHER THAN  AN  ACCOUNT
   12  PROVIDED  BY  AN EMPLOYER TO AN EMPLOYEE WITHIN THE SCOPE OF EMPLOYMENT,
   13  WITH AN ASSOCIATED ELECTRONIC MAIL ADDRESS FROM  WHICH  ELECTRONIC  MAIL
   14  MESSAGES  MAY  BE SENT AND STORED, AND TO WHICH ELECTRONIC MAIL MESSAGES
   15  MAY BE RECEIVED AND STORED.
   16    9. "ELECTRONIC MAIL ADDRESS" MEANS A DESTINATION,  COMMONLY  EXPRESSED
   17  AS  A  STRING OF CHARACTERS, CONSISTING OF A UNIQUE USER NAME OR MAILBOX
   18  AND A REFERENCE TO AN INTERNET DOMAIN,  WHETHER  OR  NOT  DISPLAYED,  TO
   19  WHICH ELECTRONIC MAIL CAN BE SENT OR DELIVERED.
   20    10.  "ELECTRONIC MAIL MESSAGE" MEANS ELECTRONIC DATA THAT IS TRANSMIT-
   21  TED FROM ONE ELECTRONIC MAIL ADDRESS TO ANOTHER ELECTRONIC MAIL  ADDRESS
   22  FOR THE PURPOSE OF COMMUNICATION.
   23    11. "ELECTRONIC MAIL SERVICE PROVIDER" MEANS A NATURAL PERSON OR ENTI-
   24  TY  THAT,  IN  THE  REGULAR  COURSE  OF BUSINESS, OFFERS ELECTRONIC MAIL
   25  ACCOUNTS TO THE GENERAL PUBLIC.
   26    12. "ENTITY" MEANS AN ASSOCIATION, COMPANY, FIRM, PARTNERSHIP,  CORPO-
   27  RATION,  LIMITED  LIABILITY  COMPANY,  SOLE PROPRIETORSHIP AND ANY OTHER
   28  FORM OF LEGALLY RECOGNIZED ENTITY, OTHER THAN A STATE OR  LOCAL  GOVERN-
   29  MENT.
   30    13.  "HEADER  INFORMATION" MEANS THE ELECTRONIC DATA PROVIDING SOURCE,
   31  DESTINATION, ROUTING AND DELIVERY DATE INFORMATION THAT IS  ATTACHED  TO
   32  AN  ELECTRONIC  MAIL  MESSAGE, INCLUDING THE ORIGINATING DOMAIN NAME AND
   33  ORIGINATING ELECTRONIC MAIL ADDRESS,  AND  ANY  OTHER  INFORMATION  THAT
   34  APPEARS  IN  THE  LINE  IDENTIFYING, OR PURPORTING TO IDENTIFY, A PERSON
   35  INITIATING THE MESSAGE.
   36    14. "INDIVIDUAL" MEANS A NATURAL PERSON.
   37    15. "PERSONAL  ELECTRONIC  MAIL  MESSAGE"  MEANS  AN  ELECTRONIC  MAIL
   38  MESSAGE  THAT  IS  EITHER SENT FROM ONE INDIVIDUAL TO ANOTHER INDIVIDUAL
   39  THAT DOES NOT INCLUDE ANY  ELEMENTS  OF  A  COMMERCIAL  ELECTRONIC  MAIL
   40  MESSAGE OR A CONFIDENTIAL ELECTRONIC MAIL MESSAGE, REGARDLESS OF WHETHER
   41  THE  MESSAGE  IS  SENT  DIRECTLY  BY  THE SENDER OR FORWARDED BY OR SENT
   42  THROUGH A SERVICE THAT OFFERS MEMBERS OR SUBSCRIBERS THE OPPORTUNITY  TO
   43  COMMUNICATE USING ELECTRONIC MAIL MESSAGES.
   44    S  167-A.  ELECTRONIC  MAIL ACCOUNTS; CONSENT TO DISCLOSURE OF CONTENT
   45  AFTER DEATH.
   46    1. CONSENT TO DISCLOSE. (A) FOR ANY ELECTRONIC  MAIL  SERVICE  ACCOUNT
   47  OPENED AFTER DECEMBER THIRTY-FIRST, TWO THOUSAND SIXTEEN, THE ELECTRONIC
   48  MAIL  SERVICE  PROVIDER  MAY  PROVIDE AN ACCOUNT HOLDER RESIDING IN THIS
   49  STATE WITH THE OPTION TO NOMINATE AN INDIVIDUAL TO RECEIVE  THE  CONTENT
   50  OF  THE  ELECTRONIC  MAIL  MESSAGES STORED IN HIS OR HER ELECTRONIC MAIL
   51  SERVICE ACCOUNT AFTER HIS OR HER  DEATH.  SUCH  AUTHORIZATION  SHALL  BE
   52  DEEMED TO BE THE ACCOUNT HOLDER'S CONSENT TO THE ELECTRONIC MAIL SERVICE
   53  PROVIDER'S  DISCLOSURE  TO  THE NOMINEE OF THE CONTENT OF ANY ELECTRONIC
   54  MAIL MESSAGES THAT ARE:  (I) STORED IN SUCH ACCOUNT AT THE TIME  OF  HIS
   55  OR  HER  DEATH, INCLUDING ELECTRONIC MAIL MESSAGES THAT HAVE BEEN DELIV-
       S. 5438                             9
    1  ERED BUT ARE UNREAD, AND (II) ELECTRONIC MAIL MESSAGES THAT  ARE  DELIV-
    2  ERED TO SUCH ACCOUNT AFTER HIS OR HER DEATH.
    3    (B)  FOR  ANY  ELECTRONIC  MAIL  SERVICE ACCOUNT OPENED BEFORE JANUARY
    4  FIRST, TWO THOUSAND SEVENTEEN, THE ELECTRONIC MAIL SERVICE PROVIDER  MAY
    5  PROVIDE  AN  ACCOUNT  HOLDER  RESIDING  IN THIS STATE WITH THE OPTION TO
    6  NOMINATE AN INDIVIDUAL TO RECEIVE THE CONTENT  OF  THE  ELECTRONIC  MAIL
    7  MESSAGES  STORED IN HIS OR HER ELECTRONIC MAIL SERVICE ACCOUNT AFTER HIS
    8  OR HER DEATH.   SUCH AUTHORIZATION SHALL BE DEEMED  TO  BE  THE  ACCOUNT
    9  HOLDER'S CONSENT TO THE ELECTRONIC MAIL SERVICE PROVIDERS' DISCLOSURE TO
   10  THE  NOMINEE  OF THE CONTENT OF ANY ELECTRIC MAIL MESSAGES THAT ARE: (I)
   11  STORED IN SUCH ACCOUNT AT THE TIME OF HIS OR HER DEATH, INCLUDING  ELEC-
   12  TRONIC  MAIL  MESSAGES THAT HAVE BEEN DELIVERED BUT ARE UNREAD, AND (II)
   13  ELECTRONIC MAIL MESSAGES THAT ARE DELIVERED TO SUCH ACCOUNT AFTER HIS OR
   14  HER DEATH.
   15    (C) AN ACCOUNT HOLDER SHALL BE DEEMED A RESIDENT  OF  THIS  STATE  FOR
   16  PURPOSES  OF  THIS  SUBDIVISION IF HE OR SHE (I) PROVIDED THE ELECTRONIC
   17  MAIL SERVICE PROVIDER WITH A BILLING ADDRESS WITHIN THIS  STATE  AT  THE
   18  TIME  HE OR SHE OPENED THE ELECTRONIC MAIL SERVICE ACCOUNT, OR (II) IF A
   19  BILLING ADDRESS WAS NOT REQUIRED TO OPEN THE  ELECTRONIC  MAIL  SERVICE,
   20  PROVIDED AN ADDRESS OR ZIP CODE WITHIN THIS STATE TO THE PROVIDER AT THE
   21  TIME THE ELECTRONIC MAIL SERVICE ACCOUNT WAS OPENED.
   22    2.  NOMINEE  CHANGE  AND  REVOCATION.  IF  AN  ELECTRONIC MAIL SERVICE
   23  PROVIDER PROVIDES RESIDENTS  OF  THIS  STATE  WITH  THE  OPPORTUNITY  TO
   24  CONSENT  TO DISCLOSURE PURSUANT TO SUBDIVISION ONE OF THIS SECTION, SUCH
   25  SERVICE PROVIDER SHALL ALSO PROVIDE THE ABILITY TO REVOKE  A  NOMINATION
   26  AND  TO  NOMINATE A DIFFERENT INDIVIDUAL. IF A NOMINATION IS REVOKED AND
   27  ANOTHER INDIVIDUAL IS NOT NOMINATED, THE CONSENT TO DISCLOSURE IS DEEMED
   28  TO BE REVOKED. SUCH REVOCATION  WILL  NOT  PROHIBIT  THE  DISCLOSURE  OF
   29  COMMERCIAL  ELECTRONIC MAIL PURSUANT TO AN ORDER OF A COURT OF COMPETENT
   30  JURISDICTION.
   31    3. PRESENTATION OF THE OPTION TO CONSENT TO DISCLOSURE.  IF  AN  ELEC-
   32  TRONIC  MAIL SERVICE PROVIDER AFFORDS RESIDENTS OF THIS STATE THE OPPOR-
   33  TUNITY TO AUTHORIZE DISCLOSURE  PURSUANT  TO  SUBDIVISION  ONE  OF  THIS
   34  SECTION, SUCH SERVICE PROVIDER SHALL INCLUDE THE FOLLOWING STATEMENTS OF
   35  SUBSTANTIALLY SIMILAR STATEMENTS;
   36    (A) "IF YOU CHOOSE TO NOMINATE SOMEONE TO RECEIVE YOUR ELECTRONIC MAIL
   37  MESSAGES, YOU ARE GIVING YOUR CONSENT FOR THAT PERSON TO READ ALL OF THE
   38  ELECTRONIC  MAIL  MESSAGES,  INCLUDING  ATTACHMENTS,  THAT  ARE  IN YOUR
   39  ACCOUNT IF YOU DIE."
   40    (B) "YOU MAY CHANGE THE PERSON WHO YOU NAMED AS YOUR  NOMINEE  AT  ANY
   41  TIME."
   42    (C) "YOU MAY REVOKE YOUR NOMINATION OF A PERSON AT ANY TIME."
   43    (D) "YOU ARE NOT REQUIRED TO NOMINATE ANYONE."
   44    S  167-B.  CONSENT  TO  THE  DISCLOSURE  OF COMMERCIAL ELECTRONIC MAIL
   45  MESSAGE CONTENT. A PERSON ENGAGING IN BUSINESS IN THIS STATE SHALL, UPON
   46  THE DEATH OF AN INDIVIDUAL RESIDING IN THIS STATE AT THE TIME OF HIS  OR
   47  HER  DEATH,  BE  DEEMED  TO  HAVE GIVEN CONSENT TO THE DISCLOSURE OF THE
   48  CONTENT OF ANY COMMERCIAL ELECTRONIC MAIL MESSAGE SENT BY OR  ON  BEHALF
   49  OF  SUCH  PERSON  TO  SUCH  DECEDENT PRIOR TO OR AFTER HIS OR HER DEATH,
   50  PROVIDED THAT SUCH DISCLOSURE IS MADE PURSUANT TO  SECTION  ONE  HUNDRED
   51  SIXTY-SEVEN-C  OF  THIS ARTICLE OR AN ORDER OF THE COURT THAT HAS JURIS-
   52  DICTION OVER THE DECEDENT'S ESTATE.
   53    S 167-C. DISCLOSURE OF ELECTRONIC MAIL MESSAGE CONTENT TO  A  NOMINEE.
   54  PRIOR TO DISCLOSING THE CONTENT OF ELECTRONIC MAIL MESSAGES STORED IN AN
   55  ELECTRONIC  MAIL ACCOUNT PURSUANT TO AN ELECTION MADE IN ACCORDANCE WITH
   56  SECTION ONE HUNDRED SIXTY SEVEN-B OF THIS ARTICLE, THE  ELECTRONIC  MAIL
       S. 5438                            10
    1  SERVICE  PROVIDER MAY REQUIRE THE NOMINEE TO PROVIDE (A) PROOF OF HIS OR
    2  HER IDENTITY, AND (B) PROOF THAT  THE  ACCOUNT  HOLDER  IS  DECEASED.  A
    3  CERTIFIED  COPY  OF THE ACCOUNT HOLDER'S DEATH CERTIFICATE SHALL CONSTI-
    4  TUTE SUFFICIENT PROOF OF DEATH.
    5    S  167-D. ELECTRONIC MAIL ACCOUNTS; ACCOUNT TERMINATION UPON DEATH. 1.
    6  ANY PROVISION IN AN ELECTRONIC MAIL SERVICE PROVIDER'S TERMS OF  SERVICE
    7  OR OTHER CONTRACTUAL AGREEMENT WITH AN ACCOUNT HOLDER WHO WAS A RESIDENT
    8  OF  THIS  STATE  AT THE TIME OF HIS OR HER DEATH FOR THE PROVISION OF AN
    9  ELECTRONIC MAIL ACCOUNT THAT CAUSES THE DELETION OF ANY ELECTRONIC  MAIL
   10  MESSAGES  STORED  IN  SUCH  ACCOUNT UPON THE DEATH OF THE ACCOUNT HOLDER
   11  SHALL BE VOID AS AGAINST PUBLIC POLICY.
   12    2. UPON NOTIFICATION OF THE DEATH OF AN ACCOUNT HOLDER WHO WAS A RESI-
   13  DENT OF THIS STATE AT THE TIME OF HIS OR HER DEATH, AN  ELECTRONIC  MAIL
   14  SERVICE  PROVIDER  SHALL  RETAIN  ALL  ELECTRONIC  MAIL MESSAGES IN SUCH
   15  ACCOUNT FOR A PERIOD OF NO LESS THAN SIX MONTHS  FOLLOWING  THE  ACCOUNT
   16  HOLDER'S   DEATH,  PROVIDED  THAT  A  LONGER  RETENTION  PERIOD  IS  NOT
   17  PRESCRIBED BY THE LAWS AND REGULATIONS OF THIS STATE, ANOTHER STATE, THE
   18  UNITED STATES, OR ANOTHER COUNTRY.
   19    S 167-E. CONSUMER EDUCATION.  THE  CONSUMER  PROTECTION  DIVISION,  IN
   20  CONSULTATION  WITH  THE  DEPARTMENT  OF  FINANCIAL  SERVICES, SHALL POST
   21  INFORMATION ON THE HOME PAGE OF THE  DIVISION'S  WEBSITE  REGARDING  THE
   22  IMPORTANCE  OF  ENSURING  THAT  ELECTRONIC MAIL ACCOUNTS CAN BE ACCESSED
   23  AFTER DEATH WITHIN SIXTY DAYS OF THE EFFECTIVE  DATE  OF  THIS  ARTICLE.
   24  SUCH INFORMATION SHALL INCLUDE THE TYPES OF INFORMATION THAT MAY NEED TO
   25  BE  OBTAINED AFTER DEATH, INCLUDING, BUT NOT LIMITED TO, ELECTRONIC MAIL
   26  MESSAGES REGARDING BANK, UTILITY, OR CREDIT  ACCOUNTS,  INSURANCE  POLI-
   27  CIES, AND OTHER TRANSACTIONS AFFECTING AN ESTATE.
   28    S  9.  This  act shall take effect on the ninetieth day after it shall
   29  have become a law.