BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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                              UNFINISHED BUSINESS


          Bill No:  SB 1268
          Author:   Simitian (D)
          Amended:  8/20/10
          Vote:     21

           
           SENATE TRANSPORTATION & HOUSING COMMITTEE  :  8-0, 4/6/10
          AYES:  Lowenthal, Huff, Ashburn, DeSaulnier, Kehoe,  
            Oropeza, Pavley, Simitian
          NO VOTE RECORDED:  Harman

           SENATE JUDICIARY COMMITTEE  :  3-1, 4/13/10
          AYES:  Corbett, Hancock, Leno
          NOES:  Walters
          NO VOTE RECORDED:  Harman

           SENATE APPROPRIATIONS COMMITTEE  :  6-3, 5/27/10
          AYES:  Kehoe, Alquist, Corbett, Leno, Wolk, Yee
          NOES:  Denham, Walters, Wyland
          NO VOTE RECORDED:  Cox, Price

           SENATE FLOOR  :  24-10, 6/1/10
          AYES:  Aanestad, Alquist, Ashburn, Calderon, Cedillo,  
            Corbett, DeSaulnier, Florez, Hancock, Huff, Kehoe, Leno,  
            Liu, Lowenthal, Negrete McLeod, Padilla, Pavley, Price,  
            Romero, Simitian, Steinberg, Wolk, Wright, Yee
          NOES:  Cogdill, Correa, Cox, Denham, Dutton, Harman,  
            Hollingsworth, Runner, Strickland, Wyland
          NO VOTE RECORDED:  Ducheny, Oropeza, Walters, Wiggins,  
            Vacancy, Vacancy

          ASSEMBLY FLOOR  :  57-13, 8/23/10 - See last page for vote

                                                           CONTINUED





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           SUBJECT  :    Disclosure of personal information

           SOURCE  :     Author


          DIGEST  :    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.  

           Assembly Amendments  increase the amount of time a  
          transportation agency can store personally identifiable  
          information, and revise the circumstances in which a  
          transportation agency can make personally identifiable  
          information available to law enforcement.

           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 e-mail.

          Even though each toll agency operates only those facilities  
          within its jurisdiction, existing law requires that the  
          Department of Transportation (Caltrans) and toll operators  
          develop functional specifications and standards for  







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          automatic vehicle identification systems so that vehicle  
          owners 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/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/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  
          (BATA), 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:  


          1. Defines a "transportation agency" as Caltrans, the BATA,  
             any entity operating a toll bridge, toll lane, or toll  







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             highway within the state, or any entity under contract  
             with any of the above entities.

          2. Prohibits a transportation agency from selling or  
             otherwise providing personally identifiable information  
             of any person subscribes or uses an electronic toll  
             collection system.

          3. 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, within five days, the person that  
             his/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.

          4. 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 cause an adverse result, as  
             defined.

          5. Requires a transportation agency to establish a privacy  
             policy, post it on their Internet Web site, and provide  
             it to subscribers in a manner that is conspicuous and  
             meaningful, such as by providing a copy to the  
             subscriber, or if the system does not use a collection  
             mechanism, with the application materials.  The privacy  
             policy shall address the following issues:

             A.    The type of personally identifiable information  
                that is collected.

             B.    The categories of third-party persons with whom  
                the agency may share the information.

             C.    The process by which an agency notifies  
                subscribers of changes to the policy.

             D.    The effective date of the policy.
              
             E.    The process by which a subscriber may review and  







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                request changes to any of his/her information.

          6. 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, on and after July 1, 2011, must be  
             discarded no more than four years and six months after  
             the closure of the billing cycle or 60 days after the  
             bill has been paid, and all toll violations, if any,  
             have been resolved.

          7. Requires a transportation agency, on or after July 1,  
             2011, to "take every effort, within practical business  
             and cost constraints," to purge personal account  
             information that is closed or terminated and specifies  
             that in no case may a transportation agency retain  
             personal information more than four years and six months  
             after the date an account is closed or terminated.

          8. 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.   
             Raises the minimum to $4,000 if three or more violations  
             occur.

          9. Specifies that the bill does not prohibit a  
             transportation agency from doing the following:

             A.    Providing aggregated traveler information that  
                relates to a group or category of subscribers from  
                which personally identifiable information has been  
                removed.

             B.    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.

             C.    Sharing data with another transportation agency  
                solely to comply with interoperability specifications  
                and standards adopted in accordance with existing  
                law.  







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             D.    Performing financial and accounting functions such  
                as billing, account settlement, enforcement, or other  
                financial activities required to operate and manage  
                the toll facilities.

             E.    Communicating about its products and services  
                offered by itself, a business partner, 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, provided that,  
                for customer agreements entered into on or after  
                January 1, 2011, the transportation agency has  
                received the subscriber's express written consent to  
                receive the communication. 

          10.Specifies that a transportation agency may not use a  
             nonsubscriber's personally identifiable information  
             obtained using an electronic toll collection system to  
             market products or services to that nonsubscriber,  
             excluding toll-related products or services contained in  
             a toll evasion notice.

          11.Defines "personally identifiable information" as any  
             information that identifies or describes a person,  
             including, but not limited to, travel pattern data,  
             address, telephone number, e-mail address, license plate  
             number, photograph, bank account information, or credit  
             card number.

          12.Specifies that nothing in items #6 and #7 above  
             precludes compliance with a court order or settlement  
             agreement that has been approved on or before April 25,  
             2010.

          13.Allows a transportation agency that employs an  
             electronic toll collection system to impose an  
             administrative fee on the persons who use that system in  
             an amount sufficient to cover the cost of this bill.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  Yes







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          According to the Senate Appropriations Committee:

                          Fiscal Impact (in thousands)

           Major Provisions      2010-11     2011-12     2012-13       Fund  

          User privacy protections      
          Prohibits sales/sharing       $0        $0          $0  
          Local*
          Retention restrictions        Unknown potential costs,  
          recovered by fees   Local*

          * Transit authorities

           SUPPORT  :   (Verified  8/23/10) 

          American Civil Liberties Union
          Consumer Action
          Consumer Federation of California
          Electronic Frontier Foundation
          Privacy Rights Clearinghouse


           ARGUMENTS IN SUPPORT  :    According to the author's office,  
          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's office states that there is a legitimate  
          concern that information originally collected for purposes  







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          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 data collection technologies.


          ASSEMBLY FLOOR  : 
          AYES:  Ammiano, Arambula, Bass, Beall, Block, Blumenfield,  
            Bradford, Brownley, Buchanan, Caballero, Charles  
            Calderon, Carter, Chesbro, Conway, Coto, De La Torre, De  
            Leon, Eng, Evans, Feuer, Fletcher, Fong, Galgiani, Gatto,  
            Gilmore, Hall, Hayashi, Hernandez, Hill, Huber, Huffman,  
            Jones, Lieu, Bonnie Lowenthal, Ma, Mendoza, Monning,  
            Nava, Nestande, Niello, Nielsen, V. Manuel Perez,  
            Portantino, Ruskin, Salas, Saldana, Skinner, Solorio,  
            Audra Strickland, Swanson, Torlakson, Torres, Torrico,  
            Tran, Villines, Yamada, John A. Perez
          NOES:  Adams, Anderson, Bill Berryhill, Tom Berryhill,  
            DeVore, Fuller, Gaines, Harkey, Knight, Logue, Miller,  
            Norby, Smyth
          NO VOTE RECORDED:  Cook, Davis, Fuentes, Furutani, Garrick,  
            Hagman, Jeffries, Silva, Vacancy, Vacancy


          JJA:mw  8/24/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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