BILL ANALYSIS SB 362 Page 1 Date of Hearing: June 19, 2007 ASSEMBLY COMMITTEE ON JUDICIARY Dave Jones, Chair SB 362 (Simitian) - As Amended: April 24, 2007 SENATE VOTE : 25-11 SUBJECT : Identification Devices: Subcutaneous Implanting KEY ISSUES : 1)Should it be unlawful for a person to require, coerce, or compel any other person to undergo the subcutaneous implantation of an identification device that transmits personal information by radio waves or other means? 2)Should "ANY INTERESTED PARTY" be permitted to file a petition declaring a minor or incompetent free from the control of a parent or guardian for purposes of implantation? 3)Are there circumstances, medical or otherwise, under which a parent or guardian might reasonably consent to the implantation of a subcutaneous device for a minor child or dependent adult? SYNOPSIS This bill is one of several that the author has introduced this legislative session to prohibit, limit, or regulate the use of RFID technology in various contexts. RFID, and related "remote readable" technologies, permit information stored on an RFID "tag" to be read by a remote reading device. Most agree that this technology has many promising commercial uses, but when it is used for purposes of human identification it raises a number of potentially troubling privacy concerns. Although thus far RFID has been limited to tracking material inventory or used in identification badges that allow persons access to buildings or other restricted places, one company has developed a chip that can be planted under the human skin. The primary purpose behind the development of this implantable chip is to provide emergency medical personnel with critical medical histories for patients, such as persons who suffer from Alzheimer's who might not be able to provide reliable medical information to medical staff in an emergency. Nonetheless, it does not take much imagination to SB 362 Page 2 envision uses of an implant that are not so benign. This bill would provide that no person could require, coerce, or compel another person to undergo an implantation of any identification device that, like RFID, transmits personal information remotely. There is no opposition to this bill. However, one provision in this bill would permit "any interested party" to file a petition to free a "minor or incompetent" from the control of a parent or guardian for purposes of implantation. The Committee may wish to consider whether this provision goes too far in interfering with well-established statutory and case law in this area. The analysis recommends deleting the provisions relating to terminating parental control and adding a provision expressly stating that nothing in this bill will alter existing law concerning the rights of parents and guardians, on the one hand, and their minor children and adult dependents, on the other hand. It also recommends other corresponding changes that would serve this same end. SUMMARY : Prohibits a person from requiring, coercing, or compelling another person to undergo a subcutaneous (under the skin) implant of an identification device that transmits personal information. Specifically, this bill : 1)Provides that a person shall not require, coerce, or compel any other individual to undergo the subcutaneous implanting of an identification device. Defines "require, coerce, or compel" to include physical violence, threat, intimidation, retaliation, the conditioning of any private or public benefit or care on consent to implantation, including employment, promotion, or employment benefit, or by any means that causes a reasonable person of ordinary susceptibilities to acquiesce to implantation when he or she would not otherwise do so. Exempts from this definition instances in which a patient or his or her guardian or parent consents to implantation for legitimate medical uses. 2)Defines an "identification device" as any item, device, application, or product that is passively or actively capable of transmitting personal information, including, but not limited to, devices using radio frequency technology. 3)Provides that any person who violates the above provision may be assessed an initial civil penalty of up to $10,000 and $1000 for each day that the implant remains in place. Provides further that a person who is implanted with a SB 362 Page 3 subcutaneous device in violation of this bill may, subject to appropriate statute of limitations, bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, or any appropriate combination thereof. 4)Provides that for purposes of implantation only any interested person may file a petition for an order or judgment declaring an incompetent or minor free from the control of a parent or guardian. 5)Specifies that provisions of this bill shall be liberally construed so as to protect privacy and bodily integrity. EXISTING LAW : 1)Grants to all persons within this state a constitutional right to privacy and, unlike the federal constitution, protects the right to privacy from both state action and private entities. (Cal. Const., Art. I, Sec. 1; Hill v. Nat'l Collegiate Athletic Assn (1994) 7 Cal. 4th 1.) 2)Specifies the circumstances under which a minor child may be declared free from parental control and the subsequent procedures of terminating parental rights and responsibilities with regard to that child. Specifies further the procedures by which a petition may be filed with the court for the purpose of declaring a child free from the custody and control of either or both parents. (Family Code Sections 7800 through 7895.) Provides, however, that the termination of parental rights is a drastic remedy to be resorted to only in extreme cases. (In Re Baby Girl M. (2006) 135 Cal. App. 4th 1528, review denied) (interpreting Family Code Section 7820.) 3)Provides that the abuse of parental authority is the subject of judicial cognizance in a civil action brought by the child, or by the child's relative within the third degree, or by the supervisors of the county wherein the child resides. (Family Code Section 7507.) FISCAL EFFECT : As currently in print this bill is keyed non-fiscal. COMMENTS : This bill is one of several bills introduced by this author, and before this Committee, that seek to prohibit, limit, or regulate the use of RFID technology in various contexts. SB 362 Page 4 This bill would prohibit any person from requiring, coercing, or compelling any other person to undergo a subcutaneous implant of any device that transmits that person's personal information remotely. Although the language of this bill specifically references RFID devices, it is apparently meant to apply to the implantation of any device that transmits personal information, whether by radio waves or otherwise. According to author, this bill is needed because subcutaneous "RFID-enabled identification devices have been developed and are being marketed in the U.S. and abroad." One company, VeriChip Corporation, has already received approval from the U.S. Food and Drug Administration (FDA) for human use (such devices can already be implanted in pets.) Even VeriChip, as the author points out, has indicated its general support for measures that will prevent the forced implantation of such technology in human beings. In order to ensure that such implants will only take place if consented to by an adult acting free of any undue influence, the author has introduced this bill. This bill would provide that no person may "require, coerce, or compel" another person to undergo a subcutaneous implant of an RFID device or any other identification device that transmits personal information. The bill defines "require, coerce, or compel" to mean not only using physical force, but also using other forms of intimidation or coercion, such as making acquiescence to an implant a condition of employment or some private or public benefit. In short, this bill prohibits using any means that would cause a reasonable person of ordinary sensibilities to consent to an implantation when he or she would not do so otherwise. The bill would exempt instances in which a patient or his or her guardian consents to implantation for "legitimate medical uses." Background: What is RFID and How Does it Work ? Despite the jargon-laden language sometimes used by both proponents and opponents, the basic outline of how RFID and related technologies works is fairly easy to understand. RFID "tags" can be embedded into objects, including documents, clothing, and, of course, under people's skin. The tag typically consists of a microchip (that stores information) and one or more antennae. Remote "readers" can read this tag via radio waves. The reader constantly emits radio signals. As a person or object with an RFID tag moves near the reader - the distance varies depending upon the device - the antennae pick up the SB 362 Page 5 signal and transmit the information stored on the microchip to the reader. (Some RFID tags are "passive," which means that they can only be activated by the radio signal; others are "active," which means that they can actively search out readers in the area.) The reader then can transmit this information to a computer database. In some ways, RFID technology is merely a higher-tech version of bar code and magnetic strip scanning. However, scanning requires direct contact between the scanner and the stored information (or at least the magnetic strip or barcode must be in the direct line of sight of a laser). RFID readers, on the other hand, can read the information stored on the RFID tag remotely. With existing technology, the reader's capacity may only be about an inch or several feet. Experts disagree on the potential range of RFID readers in the future. But most agree that the current technology typically only works at ranges of a few inches, though some devices may have ranges up to thirty feet. However, the fact that RFID tags can be read at any distance creates the possibility that information stored on an identification document, or a chip buried beneath the skin, can be read without the holder's knowledge or consent. A key issue that divides experts on both sides of the debate, however, concerns the nature of the information stored on the RFID device, and the usefulness of that information to any unauthorized reader. Sometimes an RFID tag only contains a random number that has no meaning until the reader transmits it to a computer database, where the random number is then matched to other information. However, RFID tags apparently can contain other information, such as a name, address, a credit card number, or even a visual image. Experts on both sides of the debate disagree about the value of "encryption" or other security measures that make stored information intelligible only to authorized readers. Moreover, privacy advocates point out that security measures must address more than the ability of the reader to access intelligible information from the tag; they must also address potential security breaches along the entire transmission process from tag, to reader, to computer database. Proponents of RFID, on the other hand, claim that RFID applications are confined to a closed system of authorized tags, readers, and databases within that system. So that even if outsiders with remote readers obtained information from an RFID tag, that information is only intelligible to persons within the system. (The above summary of RFID technology, and the contours SB 362 Page 6 of the debate of privacy and security issues, is based, in part, on a host of documents representing the opinions of privacy rights and consumer groups, industry representatives, and government agencies. See for example www.privacyrights.org/are/RFIDposition.htm .) Human Implanting of RFID and Other Identification Devices : Thus far, RFID technology has only been used in identification cards or to track inventory. However, VeriChip Corporation recently received FDA approval for an RFID device that can be implanted subcutaneously (i.e. beneath the skin). According to documents filed by VeriChip with the U.S. Securities and Exchange Commission, its implantable microchip is part of its broader "VeriMed System." Although VeriChip suggested that the chip could potentially have diverse applications, it would primarily be of use to emergency room personnel and other medical first responders for accessing the medical histories of certain incommunicative patients. For example, the chip might be appropriate for a person with special but not readily apparent medical needs, or for a person who suffered from some form of dementia and could not be relied upon to provide reliable information to medical personnel. Despite these potentially life-saving uses, few would disagree that forcing an individual to undergo a subcutaneous implant of any identification device so violates common sense notions of personal privacy and bodily integrity that it should not be permitted. Indeed, to the extent that this bill makes it unlawful to physically force another person to undergo an implant against his or her will, it is undoubtedly duplicative of the existing law of criminal and civil battery. However, the bill would sensibly go beyond this existing law by prohibiting and making actionable lesser forms of coercion, such as conditioning employment or some other benefit on the willingness to undergo a subcutaneous implant. Not surprisingly, there is no formal opposition to the bill on this point. As noted above, even the manufacturer has publicly acknowledged that implantation should only be voluntary. The Question of Parental Rights : While the overall purpose of this bill seems laudable and sensible, which is presumably why no one opposes it, there are provisions of this bill that potentially - and unnecessarily the Committee believes - interfere with parental rights in ways that the author may not have intended. Indeed, two provisions in this bill raise SB 362 Page 7 substantial questions about the appropriate balance between parental rights and the best interests of a child. The Committee may wish to discuss these issues with the author and consider the following questions and proposed amendments. Parental Rights Issue #1: Should a parent or guardian ever be permitted to allow implantation in his or her child for non-medical uses? Under this bill, any parent who allows or facilitates his or her child to undergo an implantation for any reason other than "legitimate medical uses" would violate the provisions of this bill and be subject to an initial civil penalty of up to $10,000 and an additional $1000 per day until the implant is removed. As currently drafted, this bill provides that no person shall "require, coerce, or compel" any other person to undergo an implant; it then defines "require, coerce, or compel" to exclude implantation for medical uses for which the patient "or his or her guardian" has consented. Under standard rules of statutory construction, the expression of one thing implies the exclusion of another. This would mean that, under this bill, a parent or guardian who consented to an implant for his or her child for any reason other than a "legitimate medical use" (which is not defined) would have violated the provisions of this bill. Exempting medical uses seems manifestly reasonable, but the Committee may wish to consider with the author whether there are other non-medical uses for which a parent should reasonably be permitted as a matter of parental autonomy to consent to having a chip implanted in his or her child (e.g., for avoidance of kidnapping or other safety-related issues.). Parental Rights Issue # 2: Does the provision permitting "any interested party" to file a petition declaring a minor "free from the control of a parent or guardian" for purposes of the implantation impose too great an infringement upon parental rights? Even a parent who approves an implant for a legitimate medical use could apparently be subject to a petition seeking to declare a child free from parental control for purposes of the implantation. Proposed subdivision (a) provides that anyone who requires, coerces, or compels another to undergo an implant can be subject to a civil penalty and possible actions for damages. Proposed subdivision (d), on the other hand, provides that for purposes of implantation, "any interested party may file a petition for an order or judgment declaring an incompetent or minor free from the control of a parent or guardian." (The author's staff has indicated to the Committee that the bill SB 362 Page 8 could and should be amended to narrow the meaning of "any interested party" to a parent, guardian, physician, or attorney.) Subdivision (d) apparently seeks to create a new form of action, seemingly apart from the civil penalties and private actions provided for in subdivisions (a) and (b), respectively. Existing law creates proceedings for freeing a child from parental custody and control (Family Code Sections 7800-7895). However, existing law allows such proceedings to be brought only for reasons such as child abandonment, cruelty, or neglect, or where the parent is found to suffer a physical or mental incapacity due to mental illness, developmental disability, or substance abuse. Existing law also sets out the reasons and procedures for declaring a minor child a dependent of the court and, if necessary, for terminating parental rights of a child so declared. (Welfare & Institutions Code Sections 300, 360, and 366.26.) But again this only applies to serious abuse and neglect. Moreover, these procedures typically provide for the permanent termination of parental rights and control, subject albeit to complex procedures for establishing reunification and the restoration of parental rights. This bill, however, would apparently allow an interested party to file a petition to free a child from parental control relative to a single decision, where there is no evidence that the parent is otherwise unfit for the duties of parenthood. Existing law already provides that abuse of parental authority is subject to judicial cognizance in a civil action brought by a child, appropriate representative of the child, or other interested party. (Family Code Sections 7507, 7840-7841.) Finally, well-established case law establishes principles to guide the court's efforts to balance the competing rights and interests of parents and guardians, on the one hand, and the rights and interests of minor children and dependent adults, on the other hand. [Compare In re Baby Girl M. (2006) 135 Cal. App. 4th 1528 (holding that termination of parental rights is a drastic measure only to be resorted to in extreme cases) with Neumann v. Melgar (2004) 121 Cal. App. 4th 152 (holding that the bests interests of the child are paramount in interpreting and implementing the statutory scheme for termination of parental rights).] In short, existing law provides avenues for challenging decisions made on behalf of children and dependents, subject to judicial determinations for balancing parental rights with the best interest of a child. The Committee may wish to SB 362 Page 9 consider whether this bill properly, or improperly, interferes with existing statutory and case law. In light of these issues, the Committee may wish to consider the following amendments . Possible Amendment 1 : Delete subdivision (d) in its entirety. Rationale : As noted above, this subdivision allows an interested party to petition the court for an order freeing a minor or incompetent from the control of a parent or guardian. While it is not entirely unprecedented to free a child from parental control for a single medical procedure (e.g. abortion under certain, highly proscribed circumstances) it is highly unusual. Courts usually only take the serious step of interfering with parental control of a minor where a parent poses a serious ongoing or irreversible threat to a child's safety and well-being. An implantation is not irreversible, and would not necessarily rise to the level of neglect and abuse that the courts find sufficient to terminate parental rights. Finally, even if this procedure is not done for a "medical use," it is nonetheless a medical procedure. Existing law already sets out the parameters and limitations relating to the power of a parent or guardian to consent to medical decisions on behalf of a child or dependent. [See e.g. Family Code Sections 6550, 6910-6929; see also Health & Safety Code Section 1234500 (permitting a minor child to obtain an abortion without parental consent if the minor is deemed sufficiently mature and/or other specified conditions are met.)] Possible Amendment 2 : On page 5, delete lines 16-17 which exempt a parent or guardian who consents to implantation for a "legitimate medical use" from the definition of "require, coerce, or compel" for purposes of subdivision (a). Rationale : While the Committee may agree that legitimate medical uses should be exempted, adding this exemption expressly, for the reasons discussed above, would imply that a parent or guardian who consents to an implant for any reason other than a legitimate medical use would constitute a violation of subdivision (a). However, the Committee might conclude that there are instances in which a parent or guardian could reasonably consent to the implantation of such a device for a non-medical reason. SB 362 Page 10 Possible Amendment 3 : After the definitional section at the end of the bill, add a new subdivision (i) which states: "(i) This section shall not in any way modify existing statutory or case law regarding the rights of parents or guardians, the rights of children or minors, or the rights of dependent adults." Rationale : The Committee might conclude that this section would make it clear that nothing in this bill interferes with existing law governing the relationship between parents and children and their respective rights (or between guardians and dependents and their respective rights.) This does not mean that a court could never intervene to prevent a parent from forcing a child to undergo an implant; it simply makes it clear that if it does, it will do so in a manner that conforms to existing statutory and case law. Possible Amendment 4 : As a technical and conforming change, on p. 2, line 2 after "(a)" Insert: "Except as provided in subdivision (i)" Possible Amendment 5 : Change relevant parts of this bill throughout to delete "incompetent" and replace with "dependent adult," which the Committee believes is a more applicable legal term of art. REGISTERED SUPPORT / OPPOSITION : Support American Civil Liberties Union California Alliance for Consumer Protection California Commission on the Status of Women Consumer Action Consumer Federation of California Gun Owners of California Privacy Rights Clearinghouse Protection and Advocacy, Inc. State Building and Construction Trades Council Opposition None on file SB 362 Page 11 Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334