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