BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                           Senator Ellen M. Corbett, Chair
                              2009-2010 Regular Session


          AB 953 (Eng)
          As Amended June 7, 2010
          Hearing Date: June 15, 2010
          Fiscal: Yes 
          Urgency: No
          SK:jd
                    

                                        SUBJECT
                                           
               Department of Motor Vehicles: Records: Confidentiality
                       
                                      DESCRIPTION  

          Existing law protects residence address information contained in  
          records of the Department of Motor Vehicles (DMV).  In certain  
          instances, that information may be disclosed.  For example, an  
          insurance company may obtain from DMV address information about  
          motorists and vehicle owners involved in accidents with  
          individuals insured with the company.  This bill, sponsored by  
          the California Association of Collectors, would extend this  
          provision to also include authorized contractors of the  
          insurance company, such as debt collectors, thus permitting the  
          disclosure of the address information from DMV directly to the  
          authorized contractor in these instances.

                                      BACKGROUND  

          Under existing law, residence address information in DMV records  
          is confidential and may not be disclosed to any person except to  
          a court, law enforcement or other government agency, or if the  
          disclosure is subject to certain exemptions.  Disclosures to  
          insurance companies are currently exempted from this prohibition  
          when the company, under penalty of perjury, requests the  
          information for any of the following purposes: (1) to obtain the  
          address of another motorist or vehicle owner involved in an  
          accident with the company's insured; (2) to obtain address  
          information about an individual who has signed a written waiver  
          of the disclosure prohibition; or (3) to obtain address  
          information about other individuals insured under that policy  
          where the named insured has signed the written waiver.
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          This bill would permit the disclosure of residence address  
          information to an authorized contractor of the insurance  
          company.  Information could only be disclosed for the purpose of  
          obtaining the address of another motorist or vehicle owner  
          involved in an accident with the company's insured.  

                                CHANGES TO EXISTING LAW
           
           Existing law  provides that any residence address in DMV records  
          is confidential and shall not be disclosed to any person except  
          a court, law enforcement or other government agency, or as  
          specified in Vehicle Code Sections 1808.22 and 1808.23.  (Veh.  
          Code Sec. 1808.21.)

           Existing law  provides that residence address information may be  
          released to an insurance company when the company, under penalty  
          of perjury, requests the information for the purpose of  
          obtaining the address of another motorist or vehicle owner  
          involved in an accident with the company's insured.  Residence  
          information may also be released to an insurance company when  
          the company requests the information about an individual who has  
          signed a written waiver of Section 1808.21 or when the requested  
          information relates to individuals insured under the policy if a  
          named insured has signed the written waiver.  (Veh. Code Sec.  
          1808.22(b).)   
           
          Existing law  provides that any residential addresses released by  
          DMV may not be used for direct marketing or solicitation for the  
          purchase of any consumer product or service.  (Veh. Code Sec.  
          1808.23(d).)

           Existing law  also requires any person who has access to  
          confidential or restricted DMV information to establish  
          procedures to protect the confidentiality of those records.   
          Existing law specifies that if any confidential or restricted  
          information is released to any agent of a person authorized to  
          obtain information, the person shall require the agent to take  
          all steps necessary to ensure confidentiality and prevent the  
          release of any information to a third party.   No agent shall  
          obtain or use any confidential or restricted records for any  
          purpose other than the reason the information was requested.   
          (Veh. Code Sec. 1808.47.)

           This bill  would revise the above exemption to provide that the  
          prohibition on the release of residence information does not  
                                                                      



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          apply to an authorized contractor of the insurance company when  
          the contractor requests the information for the purpose of  
          obtaining the address of another motorist or vehicle owner  
          involved in an accident with the company's insured.  This bill  
          would provide that the information shall not be used or  
          disclosed for any other purpose or to any other person.

           This bill  would provide that all information obtained by  
          insurance companies, or their authorized contractors, from the  
          department shall be subject to existing state and federal  
          limitations on the use or disclosure of the information and data  
          security requirements that are applicable to the principal  
          (i.e., the insurer).  

           This bill  would specify that the DMV shall enforce use or  
          disclosure limitations and data security requirements that are  
          imposed on authorized contractors in compliance with the  
          department's regulations.

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
            AB 953 allows insurance company agents to obtain home address  
            records from the Department of Motor Vehicles (DMV) with the  
            same high level of protection that those records already  
            receive under current law.  . . .   Under current law, there  
            is an uncertainty as to whether insurance companies can  
            authorize collection agencies to use the insurers' access to  
            DMV records in order to determine the home addresses of, and  
            thereby make contact with, drivers and vehicle owners who have  
            been involved in accidents with parties that they insure.
          
          The author further explains, "[the bill] adds authorized agents  
          and employees under one circumstance only, where another  
          motorist or vehicle owner is involved in an accident with the  
          company's insured.  The intent is to allow insurance companies  
          who use a collection agency for account management to authorize  
          the release directly to the agency rather than asking for it and  
          then sending it to the agency.  This reduces business costs and  
          risks to privacy from multiple disclosures and transmissions.   
          The bill also makes it clear that all applicable privacy and  
          data security requirements must be followed."

                                                                      



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          The California Association of Collectors (CAC), sponsor, writes  
          that "[a]ddress information is critical to protect consumers by  
          validating proper identity or preventing fraud and  
          mis-identification.  The bill makes it clear that all existing  
          privacy and data security laws apply and that DMV enforcement  
          processes also apply."

          CAC indicates that "[c]ollectors get DMV address information now  
          in this situation to locate the owner, the financially  
          responsible party in a vehicle accident, when the vehicle may  
          have been operated by a non owner driver.  The collector is  
          seeking the legally liable party who is financially responsible  
          for the damages in the accident.  They are also seeking to  
          verify the correct identity to avoid going after the wrong party  
          and verifying the correct owner because title [to] the vehicle  
          may have changed several times since the accident."

          2.  Bill would permit disclosure of address information directly  
            to authorized contractor of insurance company; additional  
            protections needed to guard against misuse  

            a.   Disclosure of address information directly to authorized  
            contractor   

            Current law's prohibition on the disclosure of residence  
            address information does not apply to insurance companies when  
            they are seeking that information to obtain the address of  
            another motorist or vehicle owner involved in an accident with  
            the company's insured.  This bill would permit a disclosure to  
            be made by DMV directly to an authorized contractor of the  
            insurance company, for the purpose of obtaining the address of  
            another motorist or vehicle owner involved in an accident with  
            the company's insured.  

            The intent of this bill is to reduce costs for the insurance  
            company and contractor when an insurer engages a contractor's  
            services.  For example, an insurer involved in a subrogation  
            action may need to find the owner of the vehicle involved in  
            an accident.  Under existing law, the insurer must make the  
            request to DMV for address information and then give that  
            information to the authorized contractor to locate the vehicle  
            owner.  Under this bill, that contractor could make a request  
            directly to DMV for information about the motorist or vehicle  
            owner involved in the accident. 

            This bill would provide that all information obtained under  
                                                                      



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            the bill's exemptions regarding residence information shall be  
            subject to existing state and federal limitations on the use  
            or disclosure of the information and data security  
            requirements which are applicable to the principal.  As a  
            result, existing provisions of law protecting such information  
            would apply.  For example, current law provides that any  
            residential addresses released by DMV may not be used for  
            direct marketing or solicitation for the purchase of any  
            consumer product or service.  Other provisions of law relating  
            more generally to data security such as Civil Code Section  
            1798.81.5, which requires businesses to maintain reasonable  
            security procedures and practices, and Civil Code Section  
            1798.82, which requires notification in the event of a data  
            breach, would apply to any disclosure.

            The bill would also provide that residence information shall  
            not be used or disclosed for any other purpose or to any other  
            person.  As a result, residence information obtained by an  
            authorized contractor for the purpose of obtaining the address  
            of another motorist or vehicle owner involved in an accident  
            with the company's insured could only be used or disclosed for  
            that specific purpose.  

            b.   Additional protections needed  

            Despite the above-described provisions, this bill still raises  
            the concern that address information obtained for one purpose  
            could be used for another, despite the clear prohibition not  
            to do so.  California law strictly protects residential  
            address information contained in DMV records and permits  
            access only to a court, law enforcement agency, or other  
            government agency or as permitted in Vehicle Code Sections  
            1808.22 or 1808.23.  Those two sections contain very limited  
            exceptions allowing certain entities, under penalty of  
            perjury, access to residence information for certain purposes.  
             For example, insurers when requesting the information for the  
            purpose of obtaining the address of another motorist or  
            vehicle owner involved in an accident with the company's  
            insured or an attorney who needs the information to represent  
            a client in a criminal or civil action.  
            This bill would instead, for the first time, allow "authorized  
            contractors" including debt collectors to directly obtain from  
            DMV some of the most confidential information about California  
            drivers-their home address information.  As a result, the  
            Committee may wish to amend the bill to contain the following  
            additional protections to protect against potential misuse of  
                                                                      



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            this new authority:

                Suggested amendments:

                1.  Require that the authorized contractor is acting on  
               behalf of the insurer pursuant to a contractual agreement; 

               2.  Provide that the insurer is responsible for any misuse  
               of the information by the authorized contractor;

               3.  Strengthen current language in the bill by requiring  
               that the information may not be used or disclosed for any  
               other purpose other than the reason the information was  
               requested;

               4.  Require that all information received from DMV, and any  
               copies made of that information, be destroyed pursuant to  
               Civil Code Section 1798.81 once the authorized contractor  
               has used the information for the purpose of obtaining the  
               address of a motorist or vehicle owner involved in an  
               accident with individuals insured with the insurer;

               5.  Prohibit the authorized contractor from selling any  
               information obtained or storing, combining, or linking DMV  
               information with any database for resale or for any purpose  
               other than obtaining the address of a motorist or vehicle  
               owner involved in an accident with individuals insured with  
               the insurer;

               6.  Require the authorized contractor to maintain a log to  
               track the receipt, use, and dissemination of the  
               information.  The log must be immediately available to DMV  
               upon request and must be maintained for four years from the  
               date of the request;

               7.  Require the authorized contractor to maintain a surety  
               bond in the amount of $50,000, consistent with Vehicle Code  
               Section 1810.2(c) and California Code of Regulations  
               Section 350.24; and 

               8.  Provide that an authorized contractor that violates the  
               bill shall be liable to the DMV for civil penalties up to  
               $100,000 and, if the contractor is a Commercial Requester,  
               shall have its requester code suspended for a period of  
               five years, or revoked.

                                                                      



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            Many of the provisions described above are required already of  
            entities that have applied for "Commercial Requester" status  
            from the DMV, which permits some requesters to become  
            pre-approved to receive address information from the DMV to  
            accomplish a legitimate business purpose pursuant to specified  
            statutes.  Those Commercial Requester Accounts (CRAs) are  
            established for applicants who have a legitimate business need  
            for obtaining DMV information, have paid the appropriate fee,  
            and provided a $50,000 bond.  The DMV indicates that it  
            enforces the requirements that confidential information be  
            obtained only for specified reasons and kept secure and  
            confidential.  For example, CRAs must sign a security  
            agreement and agree to Terms and Conditions, and the  
            distribution of restricted or confidential information in  
            violation of law is subject to a penalty up to $100,000.  In  
            addition, DMV indicates that the security agreement must be  
            signed annually by the CRA's employees.  DMV also indicates  
            that it would require proof of an authorization from the  
            authorized contractor. 


           Support  :  None Known

           Opposition :  None Known

                                        HISTORY
           
           Source  :  California Association of Collectors

           Related Pending Legislation  :  SB 433 (Harman), which would have  
          required that DMV submit a report to the Legislature on January  
          1, 2011 regarding all requests for address information made to  
          the department by insurers and financial institutions in 2010,  
          was returned to the Secretary of the Senate pursuant to Joint  
          Rule 56.

           Prior Legislation  :  None Known

           Prior Vote  :

          Assembly Transportation Committee (Ayes 14, Noes 0)
          Assembly Appropriations Committee (Ayes 17, Noes 0)
          Assembly Floor (Ayes 73, Noes 0)

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