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  




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          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  




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            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, 





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               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  




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                 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  




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            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  




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            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.