BILL ANALYSIS SENATE TRANSPORTATION & HOUSING COMMITTEE BILL NO: SB 1268 SENATOR ALAN LOWENTHAL, CHAIRMAN AUTHOR: simitian VERSION: 4/5/10 Analysis by: Jennifer Gress FISCAL: Yes Hearing date: April 6, 2010 SUBJECT: Disclosure of personal information DESCRIPTION: This bill prohibits, with some exceptions, a transportation agency from selling or otherwise providing personally identifiable information of a person who subscribes to an electronic toll collection system or who uses a toll facility that employs such system and establishes time periods up to which an agency may retain that information. This bill also establishes a minimum amount of money a person whose personally identifiable information was knowingly sold or otherwise provided may receive in damages and costs. ANALYSIS: Toll agencies may employ an automatic vehicle identification system, referred to in this bill as an electronic toll collection system, to facilitate toll operations. FasTrak is the most common example of an automatic vehicle identification system in use in California. FasTrak systems allow subscribers to prepay tolls thereby eliminating the need to stop at the toll plaza. The system has three components: a transponder or toll tag, which is placed inside the vehicle; an antenna over the roadway that reads the transponder and deducts the toll amount from a subscriber's account; and video cameras that capture vehicles' license plates to identify toll evaders. The FasTrak system tracks a subscriber's usage and account balance. A monthly or quarterly statement itemizing bridge use and account balance is sent to subscribers via the postal mail or email. Even though each toll agency operates only those facilities within its jurisdiction, existing law requires that the California Department of Transportation (Caltrans) and toll operators develop functional specifications and standards for automatic vehicle identification systems so that vehicle owners SB 1268 (SIMITIAN) Page 2 not be required to purchase or install more than one device to use on all toll facilities in the state. This functionality is known as interoperability. In addition to FasTrak-type systems, some toll operators permit pay-by-plate toll payment which involves the use of on-road vehicle license plate identification technology. There are several ways in which pay-by-plate may work. For example, a person who uses a toll facility and does not have a FasTrak account or other automatic vehicle identification system could telephone or access the website of a toll operator, enter the license plate number of his or her vehicle, and pay the toll. Alternatively, a person may set up a pre-paid account so that tolls are deducted any time a vehicle uses the toll facility and his or her license plate number is captured. Laws and regulations governing the use of personal information collected by automated systems are limited and somewhat fragmented. Existing law prohibits any information obtained through the use of automated devices from being used for any purpose other than to identify and obtain the mailing address of toll evasion violators or of persons entering a toll highway, toll lane, or toll bridge where pay-by-plate toll payment is permitted by the toll operator. Additionally, the Bay Area Toll Authority, as the toll operator for the seven state-owned toll bridges that employ FasTrak, is required to give vehicle owners the option of opening and maintaining an account with cash or check and without requiring them to provide their name or address. Finally, most toll operators have adopted some sort of privacy policy for account holders on their own accord. This bill establishes a framework guiding how a transportation agency may use personally identifiable information of a person who subscribes to an electronic toll collection system or uses a facility that employs an electronic toll collection system. In so doing, this bill: Defines a "transportation agency" as Caltrans, the Bay Area Toll Authority, any entity operating a toll bridge, toll lane, or toll highway within the state, or any entity under contract with any of the above entities. Prohibits a transportation agency from selling or otherwise providing personally identifiable information, including but SB 1268 (SIMITIAN) Page 3 not limited to, travel pattern data, address, telephone number, bank account, or credit card information of any person. Allows a transportation agency to provide such information to a law enforcement agency pursuant to a search warrant, provided the law enforcement agency immediately notifies the person that his or her records have been obtained and provides a copy of the search warrant and the identity of the law enforcement agency or officer to whom the records were given. Provides that a peace officer may obtain personally identifiable information when conducting a criminal or traffic collision investigation without a search warrant if the officer has good cause to believe that a delay in obtaining a warrant would result in imminent danger to the health or safety of a member of the public. In this situation, the officer must provide the transportation agency a written statement setting forth his or her basis for good cause, notify the person immediately, but no later than 15 days from the day his or her records have been obtained, and provide the person the basis for obtaining the records. An officer may request a court order for a 30-day extension of the notice requirement if he or she believes notification would interfere with the investigation. Requires a transportation agency to establish a privacy policy and provide it to subscribers in a manner that is conspicuous and meaningful. The privacy policy shall address the following issues: o The type of personally identifiable information that is collected, o The categories of third-party persons with whom the agency may share the information, o The process by which an agency notifies subscribers of changes to the policy, SB 1268 (SIMITIAN) Page 4 o The effective date of the policy, and o The process by which a subscriber may review and request changes to any of his or her information. Allows a transportation agency to store personally identifiable information, such as account name, credit card number, billing address, vehicle information, and other basic account information for purposes of billing, account settlement, or enforcement. All other information must be discarded six months after the closure of the billing cycle or 60 days after the bill has been paid, whichever occurs last. Requires a transportation agency to "take every effort, within practical business and cost constraints," to purge personal account information within 60 days after the date the account is closed or terminated and specifies that in no case may a transportation agency retain personal information more than 150 days after the date an account is closed or terminated. Establishes a minimum of $2,500 that a person whose personally identifiable information was knowingly sold or otherwise provided may receive in damages and costs. Specifies that the bill does not prohibit a transportation agency from doing the following: o Providing aggregated traveler information that relates to a group or category of subscribers from which personally identifiable information has been removed. o Providing the license plate number of an intermodal chassis to the owner of the chassis for purposes of locating the driver of the chassis in the event the driver fails to pay the toll. o Sharing data with another transportation agency SB 1268 (SIMITIAN) Page 5 solely to comply with interoperability specifications and standards adopted in accordance with existing law. o Performing financial and accounting functions such as billing, account settlement, enforcement, or other financial activities required to operate and manage the toll facilities. o Communicating exclusively about its transportation-related products and services on behalf of itself or the agency with which it contracts to subscribers of the transportation agency through a contracted third-party vendor using personally identifiable information limited to the subscriber's name, address, and electronic mail address. COMMENTS: 1.Purpose . According to the author, this bill is intended to protect the privacy of motorists in California by controlling the use of personal information that is collected and stored by electronic toll collection systems (e.g., FasTrak). Examples of personal information include travel pattern data, location, speed, time of day, address, telephone number, bank account information, and credit card numbers. In addition to facilitating toll payment, FasTrak transponders are also used to collect traffic information such as travel times. The signal emitted by a transponder is detected by sensors or meters that have been placed along the roadway on certain highway segments. These data are aggregated and used to provide real-time traffic information via Caltrans' changeable message signs and services as the Bay Area's 511.org. The author states that there is a legitimate concern that information originally collected for purposes of electronic toll collection or the provision of travel information could be provided to other companies or organizations for marketing purposes. Existing restrictions on information sharing and sales vary among transportation agencies. By codifying the standards contained in this bill, the author contends the bill will assure that privacy protections extend to all transportation agencies that have, or may acquire, electronic SB 1268 (SIMITIAN) Page 6 data collection technologies. 2.Unclear implications for existing agreements . Toll operators may enter into a number of agreements, with each other, with the DMV, and in some cases as part of a legal settlement regarding access to and storage of personal information. The implications of this bill on these existing agreements are unclear and should be explored further if this bill moves forward. Interoperability agreements. The bill does not prohibit a transportation agency from sharing data with another agency solely to comply with interoperability specifications and standards contained in existing law regarding electronic toll collection devices, which among other things, requires that the vehicle owner not be required to purchase or install more than one device to use on all toll facilities in the state. To achieve the objective of interoperability, toll agencies enter into agreements with one another that allow for the sharing of data about subscribers so that a vehicle with an account held by one agency can use the same transponder on a toll facility operated by another agency. While existing law requires that one transponder be able to be used on all facilities, it does not require that only one account is maintained. In fact, existing law states that a subscriber "may be required to have a separate account or financial arrangement for the use of these facilities." For this reason, it is unclear that this provision of the bill is sufficiently broad to allow agencies to share information about its subscribers in the same way as toll operators do today. DMV agreements. A toll agency may also have an agreement with DMV about the use of personal information the toll agency obtains when attempting to determine the name and address of a vehicle's registered owner when it failed to pay a toll for purposes of issuing a notice of toll violation. Legal settlements. The Orange County Transportation Authority (OCTA) indicates that, as a result of a lawsuit, it and the Transportation Corridor Agencies (TCA) are required to retain information for five years. If this bill moves forward, the author may wish to consider how the provisions of this bill interact with these existing agreements to ensure that the bill achieves his objective of SB 1268 (SIMITIAN) Page 7 ensuring drivers' privacy while also ensuring convenience for drivers and meeting all other legal requirements. 3.Purging data . The bill requires that a transportation agency "purge" personal account information within 60 days after the date the account is closed or terminated. After a certain period of time, many toll operators archive data they have collected. The author may wish to specify whether or not this provision is intended to apply proactively to data collected as of the operative date of this bill or retroactively to all data that a toll agency has ever collected. 4.AB 198 (Nation) . This bill is similar to AB 198 (Nation), which was introduced in the 2003-2004 Legislative Session. An early version of that bill, which contained many provisions that this bill contains, passed the Senate Transportation Committee hearing 11 to 0. The bill was later gut and amended to deal with a different subject matter. 5.Double-referral . This bill is double-referred to this committee and the Judiciary Committee. If this bill is passed in this committee, it will therefore be referred to the Judiciary Committee. If the author or the committee requests that amendments be adopted when this bill is heard in this committee, the amendments should be taken in the Judiciary Committee so that the bill may be heard in that committee on April 13th. POSITIONS: (Communicated to the Committee before noon on Wednesday, March 31, 2010) SUPPORT: None received. OPPOSED: None received.