BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1710
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          Date of Hearing:  April 29, 2014

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                Bob Wieckowski, Chair
             AB 1710 (Dickinson and Wieckowski) - As Amended:  April 24,  
                                        2014
           
          SUBJECT  :  PRIVACY: PERSONAL INFORMATION

           KEY ISSUE  :  SHOULD ADDITIONAL PRIVACY PROTECTIONS BE ENACTED TO  
          PREVENT AND REMEDY THE COSTS AND OTHER HARMS THAT OCCUR WHEN  
          BUSINESSES FAIL TO PROTECT SENSITIVE PERSONAL INFORMATION?

                                      SYNOPSIS
          
          This bill responds to the massive retail data breaches involving  
          sensitive consumer information that the Committee examined in  
          its recent oversight hearing in junction with the Committee on  
          Banking and Finance.  Supporters argue that this bill would help  
          to prevent these problems from recurring by limiting the amount  
          and type of consumer payment card information that may be  
          retained in order to limit access to hackers.  The bill also  
          emphasizes the importance of prevention by closing a loophole in  
          existing law requiring businesses that hold personal information  
          to implement reasonable security practices and procedures.  In  
          addition, the bill would tighten encryption standards under the  
          existing data breach notification law, and provide for faster  
          and more direct notice to those affected when companies lose  
          control of personal information.  The bill also requires that  
          businesses offer appropriate prevention and mitigation measures  
          when a breach involves the most sensitive types of personal  
          information that can more easily lead to identity theft.  It  
          also prohibits the sale of social security numbers.  Supporters  
          argue that these are modest and reasonable measures that should  
          improve prevention and help to remedy the significant risk of  
          harm that occurs when personal information is exposed.   
          Opponents representing business groups argue that the bill  
          imposes onerous and unneeded data management mandates that would  
          be ineffective, counterproductive, wasteful and confusing.

           SUMMARY  :  Enhances privacy protections for sensitive personal  
          information.  Specifically,  this bill  :  

          1)Provides that a person or business that sells goods or  
            services to any resident of California and accepts as payment  








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            a credit card, debit card, or other payment device shall not  
            store payment-related data, as defined, unless the person or  
            business has and complies with a payment data retention and  
            disposal policy that limits the amount and time that  
            payment-related data is retained to that required for  
            business, legal, or regulatory purposes.

          2)Provides that such a person or business may not store  
            sensitive authentication data subsequent to an authorization. 

          3)Prohibits storage of the following data elements: payment  
            verification code; payment verification value; PIN  
            verification value.

          4)Prohibits retention of the primary account number unless  
            retained in a manner consistent with the other specified  
            requirements and in a form that is unreadable and unusable by  
            unauthorized persons anywhere it is stored.

          5)Prohibits sending payment-related data over open public  
            networks unless the data is encrypted using strong  
            cryptography and security protocols or otherwise rendered  
            indecipherable.

          6)Requires that such a person or business limit access to  
            payment-related data to only those individuals whose job  
            requires that access.

          7)Exempts from the foregoing any person or business subject to  
            Sections 6801 to 6809, inclusive, of Title 15 of the United  
            States Code and state or federal statutes or regulations  
            implementing those sections, if the person or business is  
            subject to compliance oversight by a state or federal  
            regulatory agency with respect to those sections.

          8)Provides that nothing in the foregoing shall prohibit a person  
            or business that sells goods or services to any California  
            resident and accepts as payment a credit card, debit card, or  
            other payment device from storing payment-related data for the  
            sole purpose of processing ongoing or recurring payments,  
            provided that the payment-related data is maintained in  
            accordance with these requirements.

          9)Provides that a person or business subject to the foregoing  
            shall be liable for the reimbursement of all reasonable and  








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            actual costs of providing notice pursuant to subdivision (a)  
            of Section 1798.82 and for the reasonable and actual cost of  
            card replacement as a result of a breach described in that  
            section, to the owner or licensee of the information.

          10)Provides that existing personal information data security  
            obligations apply to businesses that maintain personal  
            information, in addition to those who own or license the  
            information. 

          11)Provides that the existing exemption from data breach  
            notification requirements for encrypted data would require the  
            data to be encrypted in conformance with the National  
            Institute of Standards and Technology, Federal Information  
            Processing Standards Publication 197, as amended from time to  
            time. 

          12)In the event of a breach, provides that in addition to  
            notifying the owner or licensee of the data, the person or  
            business that maintains the data shall notify persons affected  
            by the breach, at the same time that notice is given to the  
            owner or licensee, by United States mail if the person or  
            business has a mailing address for the subject persons or  
            email notice if the person or business has an email address  
            for the subject persons. If the subject persons cannot be  
            notified by mail or email, the person or business shall  
            provide notice by the following methods: (A) Conspicuous  
            posting of the notice on the Internet Web site page of the  
            person or business, if the person or business maintains an  
            Internet Web site page, for at least 30 days; (B) Notification  
            to major statewide media.

          13)Provides that if the person or business providing the  
            notification was the source of the breach, an offer to provide  
            appropriate identity theft prevention and mitigation services,  
            if any, shall be provided at no cost to the affected person  
            for not less than 24 months, along with all information  
            necessary to take advantage of the offer to any person whose  
            information was or may have been breached if the breach  
            exposed or may have exposed two kinds of personal information:  
            social security numbers and driver's license numbers.

          14)Provides that a person or entity may not sell, advertise for  
            sale, or offer to sell an individual's social security number  
            except where the social security number is incidental to the  








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            transaction.

           EXISTING LAW  : 

          1)Provides that a business that owns or licenses personal  
            information about a California resident shall implement and  
            maintain reasonable security procedures and practices  
            appropriate to the nature of the information, to protect the  
            personal information from unauthorized access, destruction,  
            use, modification, or disclosure.  Further provides that a  
            business that discloses personal information about a  
            California resident pursuant to a contract with a  
            nonaffiliated third party shall require by contract that the  
            third party implement and maintain reasonable security  
            procedures and practices appropriate to the nature of the  
            information, to protect the personal information from  
            unauthorized access, destruction, use, modification, or  
            disclosure.

          2)Requires any person or business that conducts business in  
            California, and that owns or licenses computerized data that  
            includes personal information to disclose any breach of the  
            data to any resident of California whose unencrypted personal  
            information was, or is reasonably believed to have been,  
            acquired by an unauthorized person. Requires any person or  
            business that maintains, but does not own, personal  
            information to notify the owner or licensor of the data of any  
            breach. Provides further that disclosure shall be made in the  
            most expedient time possible and without unreasonable delay.   
            (Civil Code Section 1798.82.)

          3)Prohibits retailers from requesting or requiring as a  
            condition to accepting a credit card as payment, any personal  
            identification information related to the cardholder.  
            Authorizes a person or entity that accepts credit cards to  
            require, as a condition of accepting the card, that the  
            cardholder provide reasonable forms of identification,  
            including but not limited to a driver's license or state  
            identification card, provided that the identification is not  
            written or recorded.  (Civil Code Section 1747.08.)

          4)Prohibits a person or entity from publicly posting or publicly  
            displaying a person's social security number (SSN). Defines  
            "publicly post" or "publicly display" to mean intentionally  
            communicating or otherwise making available to the general  








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            public.  (Civil Code Section 1798.85(a)(1).)

          5)Prohibits a person or entity from doing certain things that  
            might compromise an individual's SSN, including printing a SSN  
            on any card required to access goods or services; requiring a  
            person to transmit a SSN over the Internet without a secure  
            connection or encryption; requiring a person to use his or her  
            SSN to access an Internet website, except as specified; or  
            printing an individual's SSN on any materials that are mailed  
            to the individual, unless the SSN is required to be on the  
            mailed document by state or federal law.  (Civil Code Section  
            1798.85(a)(2)-(5).)

           FISCAL EFFECT  :  As currently in print this bill is keyed  
          non-fiscal.

           COMMENTS  :  The authors explain that this bill is the result of a  
          joint oversight hearing of this Committee and the Committee on  
          Banking and Finance regarding the massive recent consumer  
          information data breaches by Target, Neiman Marcus and other  
          retailers.  To provide better protections and incentives for  
          data security, the bill has six elements:

                 Retail payment data retention and storage limitations.

                 Reasonable security procedures and practices for  
               businesses that maintain personal information in light of  
               the nature of the information. 

                 Appropriate encryption standards in order to warrant an  
               exemption from existing data breach notification law.

                 Direct notification to consumers when a business that  
               maintains personal information is the source of a data  
               breach.

                 An offer to provide appropriate identity theft  
               prevention and mitigation services, if any, by the person  
               or business that was the source of a breach of social  
               security numbers and driver's license numbers.

                 Prohibition against the sale of social security numbers.

           This Bill Renews Prior Efforts To Prevent Avoidable Loss of  
          Payment Card Information That Were Vetoed By Governor  








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          Schwarzenegger.   Retail data breaches of sensitive personal  
          information continue to be a widespread and persistent problem,  
          as shown by the recent large incidents at Target and Neiman  
          Marcus stores involving the loss of over 110 million credit and  
          debit card numbers and other consumer records.  According to a  
          Javelin Strategy and Research report, credit card fraud has  
          increased as much as 87 percent since 2010, culminating in  
          aggregate losses of $6 billion nationwide.

          According to many analysts, future data breaches may be  
          inevitable.  Sometimes these breaches are caused or exacerbated  
          by carelessness.  According to the 2014 Verizon Data Breach  
          Investigations Report, two out of three breaches last year were  
          accomplished simply by logging in using lost or stolen  
          credentials.  In other cases, companies are the victims of  
          sophisticated and elaborate attacks.  In either case, however,  
          these breaches impose significant costs and risks for consumer  
          and financial services companies, among others.

          In order to minimize the risk of harm, this bill requires that  
          businesses limit retention of payment data to the information  
          and duration needed to conduct the transaction, and encrypt the  
          data where it is sent over open public networks.  In the event  
          of a breach, the business would be liable for the reimbursement  
          of all reasonable and actual costs of providing notice pursuant  
          by the owner or licensee of that information and for the  
          reasonable and actual cost of card replacement as a result of a  
          breach described in that section, to the owner or licensee of  
          the information.  

          Thus, the bill is substantially the same as two prior measures  
          that were enacted by Legislature but vetoed by Governor  
          Schwarzenegger in 2007 and 2008.  

           Reasonable Security Standards For Businesses That Maintain  
          Personal Information.   Existing law requires a business that  
          owns or licenses personal information about a California  
          resident to implement and maintain reasonable security  
          procedures and practices appropriate to the nature of the  
          information and to protect the personal information from  
          unauthorized access, destruction, use, modification, or  
          disclosure.  Inexplicably, the statute does not apply these same  
          reasonable security standards to businesses that maintain but do  
          not own or license personal information.  This bill would close  
          this loophole by extending these provisions to businesses that  








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          maintain personal information about a California resident.

           Improved Data Breach Notification.   Under existing law,  
          businesses that own, license or maintain computerized data that  
          includes personal information shall disclose a breach of the  
          security of the system following discovery or notification of  
          the breach to a resident of California whose unencrypted  
          personal information was, or is reasonably believed to have  
          been, acquired by an unauthorized person.  

          Tightened Encryption Exemption.  The exemption for "encrypted"  
          information appears to be absolute.  As long as the data is  
          encrypted in any fashion, however negligible, no notice is  
          required despite the potential vulnerability of the information  
          to decryption.  When the data breach law was enacted years ago,  
          this broad "safe harbor" may have served to encourage businesses  
          who store consumer personal information to adopt any form of  
          encryption.  Now however encryption standards have improved, and  
          this bill would instead require that the data be encrypted to a  
          reasonable standard specified by National Institute of Standards  
          and Technology. This is the standard recommended by the Attorney  
          General.  (See California Department of Justice 2012 Date Breach  
          Report, available at http://oag.ca.gov/sites  
          /all/files/agweb/pdfs/privacy/2012data_breach_rpt.pdf.)

          Faster and More Direct Notice to Persons Affected.  In addition,  
          the bill seeks to speed and improve consumer notification when a  
          breach occurs by specifying that the person or business that  
          maintains the data shall notify persons affected by the breach  
          at the same time that notice is given to the owner or licensee.   
          This notice would be either by United States mail if the person  
          or business has a mailing address for the subject persons or  
          email notice if the person or business has an email address for  
          the subject persons.  If the subject persons cannot be notified  
          by mail or email, the person or business shall provide notice by  
          the following methods: (A) conspicuous posting of the notice on  
          the Internet Web site page of the person or business, if the  
          person or business maintains an Internet Web site page, for at  
          least 30 days; (B) notification to major statewide media.

          Appropriate Prevention and Mitigation.  Lastly, the bill seeks  
          to protect consumers from the harms of identity theft that  
          typically flow from a breach of the most sensitive personal  
          information - social security numbers and driver's license  
          numbers.  Under existing law, a business that loses control of  








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          this information is required to do no more than notify the  
          affected consumers, placing all costs and responsibility on the  
          innocent consumers to protect themselves.  In the interest of  
          consumer relations, many companies voluntarily do more, such as  
          offering credit monitoring and other services.  Nevertheless, no  
          preventive or mitigating steps are currently required.  Under  
          this measure, the person that was the source of the breach would  
          be required to offer appropriate identity theft prevention and  
          mitigation services, if any are available, at no cost to the  
          affected person for not less than 24 months, along with all  
          information necessary to take advantage of the offer to any  
          person whose information was or may have been breached if the  
          breach exposed or may have exposed two kinds of personal  
          information: social security numbers and driver's license  
          numbers.

           New Protections Against Sale of Social Security Numbers.    
          Existing law regulates the publication and dissemination of  
          social security numbers in myriad ways.  Perhaps surprisingly,  
          however, the outright sale of social security numbers is not  
          prohibited.  

          In response to growing concerns about identity theft, the  
          Individual Reference Services Group (IRSG) was established in  
          the 1990's as a self-regulatory mechanism for the industry.  
          Composed of companies specializing in identification and  
          location services, the IRSG in conjunction with the Federal  
          Trade Commission developed a comprehensive set of  
          self-regulatory principles backed by audits and government  
          enforcement.  These principles however allowed the sale of  
          Social Security numbers without the knowledge and permission of  
          the data subject, in a tiered system of standards contingent on  
          how the numbers were acquired.  The IRSG dissolved shortly after  
          passage of the federal Gramm-Leach-Bliley Act in 1999, but many  
          data brokers continue to conform to the group's principles.

          In October 2013, according to a report from Krebs Security, the  
          credit reporting bureau Experian reportedly sold SSNs through  
          its subsidiary, Court Ventures, to Hieu Minh Ngo, who allegedly  
          operated an identity theft service called SuperGet.info.  Though  
          many credit reporting bureaus such as Experian hold sensitive  
          information, they often sell that information to third parties  
          that offer services such as fraud prevention.  According to  
          Krebs, Ngo posed as a US-based private investigator to gain  
          access to individuals' SSN data. 








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          This bill would close this apparent loophole by expressly  
          prohibiting a person or entity from selling, advertising for  
          sale, or offering to sell an individual's social security number  
          except where the social security number is incidental to the  
          transaction.

           ARGUMENTS IN SUPPORT  :  Privacy Rights Clearinghouse (PRC) writes  
          that the bill would make important updates to California's  
          landmark data breach law:

               California was the first state to enact a data breach  
               notice law in 2003. ? Following California's lead, a  
               majority of the states have enacted laws requiring that  
               individuals be notified when a security breach compromises  
               personal information. And many of those states have added  
               important provisions to strengthen their respective laws  
               vis-a-vis the California law. At the same time,  
               California's law has not kept up with such provisions. 

               AB 1710 addresses these shortcomings by expanding the law  
               to: cover breaches involving non-computerized (paper)  
               records; cover breaches involving encrypted data; provide  
               [direct] notification period for data breach notices; cover  
               entities that "maintain" but do not "own" or "license"  
               data; require that 24 months of appropriate identity theft  
               and mitigation services be provided to breach victims.

               AB 1710 would also prohibit the sale of SSNs, establish  
               security practices for entities accepting payment cards and  
               devices, and establish liability for the cost of payment  
               card replacement resulting from a breach.

               PRC's Chronology of Data Breaches  
               (https://www.privacyrights.org/data-breach) documents over  
               4,200 data breaches since 2005, which have resulted in over  
               864 million breached records.  The crimes of identity theft  
               and payment card fraud are not going away.  California  
               needs to continue to be proactive in order to protect the  
               privacy and security of its residents.  Expanding  
               California's landmark security breach law as envisioned by  
               AB 1710 would represent critical steps in the right  
               direction

          The Consumer Federation of California adds:








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               AB 1710 would militate against identity theft by  
               restricting the retention of sensitive personal information  
               by businesses, and strengthen our breach notice law to  
               require timely notice when private consumer information may  
               have fallen into the wrong hands. 

               Privacy Rights Clearinghouse estimates 255,000,000 breached  
               records with personally identifiable information in 2013  
               alone. Exacerbating this threat, businesses intent on ever  
               more invasive marketing develop dossiers on all Americans,  
               but fail to institute adequately secure the data in their  
               possession.

               AB 1710 addresses several sources that contribute to the  
               data breach epidemic. Simply put, data cannot be exposed in  
                                                   a breach if that data is not retained in the first place.   
               The bill limits the storage of personal information beyond  
               the period needed to complete the transaction or for legal  
               compliance purposes. It prohibits merchants from storing  
               sensitive payment card information, after the authorization  
               is approved.  It prohibits businesses from storing data  
               that can trigger identity theft, including a driver's  
               license number, social security number, and pin number, and  
               it prohibits the transmission of unencrypted personal  
               payment data over a public network.  

               AB 1710 also requires timely notice by the business that  
               was the source of the breach. Consumer privacy should never  
               take a back seat to the profit motive as appears to have  
               happened in a recent major breach. News reports suggest  
               that Neiman Marcus delayed issuing notice of a December  
               2013 breach involving over one million credit cards until  
               after the end of the Christmas shopping season. Withholding  
               the notice deprived consumers of information that might  
               have led them to take preventative measures such as the  
               placement of a credit freeze on their credit report before  
               the damage is done. 

           ARGUMENTS IN OPPOSITION  :  A coalition of business interests has  
          expressed opposition to the bill prior to recent amendments,  
          stating in relevant part:
                
                AB 1710 ? imposes onerous and unneeded data management  
               mandates and creates new financial liabilities for  








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               non-governmental entities that take payment cards (credit  
               and debit cards) or other payment devices. If enacted, AB  
               1710 would be ineffective and in some ways  
               counterproductive to improving data security in California  
               - it would increase fraud, waste resources that would be  
               better spent on security, and would result in  
               over-notification that would ultimately confuse California  
               consumers.

               AB 1710 would institute a laundry list of conflicting  
               security requirements on businesses that sell goods and  
               services to California residents, while totally exempting  
               government entities. Government entities are as likely or  
               more likely as private sector businesses to suffer security  
               breaches, so there is no valid reason for this exemption.  
               Further, the bill would legislate over and likely replace  
               the well-established Payment Card Industry (PCI) Data  
               Security Standard, placing elements of the standard into  
               statute. By sharp contrast, the PCI data security standard  
               evolves over time to meet security threats, requiring  
               flexibility to ensure innovative methods are employed to  
               combat data breaches and protect consumers' personal  
               information.

               Fraud would increase in California under AB 1710. The bill  
               arbitrarily bans retention of a wide range of data elements  
               by entities that accept payment cards and need that  
               information to reduce fraud and avoid other harms. For  
               example, car rental companies would be banned from keeping  
               drivers' license information or storing a credit card  
               number after a user rents a car, and trucking companies  
               would be banned from retaining employee drivers' licenses.  
               The result would be significant increases in fraud in the  
               State and would make it more difficult to identify and  
               detect drivers who cause hit and run traffic accidents  
               while driving rental cars. In fact, any business that  
               accepts credit cards would be prohibited from keeping their  
               employees' Social Security numbers.

           Prior Related Legislation  :  AB 1656 (Jones) of 2008 and AB 779  
          (Jones) of 2007 were similar measures vetoed by Gov.  
          Schwarzenegger.

           REGISTERED SUPPORT / OPPOSITION  :   









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           Support 
           
          ACLU of California
          Consumer Attorneys of California
          Consumer Federation of California
          Consumer Watchdog
          Privacy Rights Clearinghouse

           Opposition (prior to proposed amendments)
           
          California Chamber of Commerce
          American Insurance Association
          Association of California Life & Health Insurance Companies
          Association of California Insurance Companies
          California Association of Collectors, Inc.
          California Bankers Association
          California Grocers Association
          California Hotel and Lodging Association
          California Manufacturers and Technology Association
          California Medical Association
          California Restaurant Association
          California Retailers Association
          California Travel Association
          Consumer Data Industry Association
          CTIA The Wireless Association
          Direct Marketing Association
          Internet Coalition
          Motion Picture Association of America
          Personal Insurance Federation of California
          State Privacy and Security Coalition
          TechAmerica
          TechNet
          The Internet Association
           
          Analysis Prepared by  :   Kevin G. Baker and Vignesh Ganapathy /  
          JUD. / (916) 319-2334