BILL ANALYSIS Ó AB 1710 Page 1 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 AB 1710 Page 2 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 AB 1710 Page 3 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 AB 1710 Page 4 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 AB 1710 Page 5 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 AB 1710 Page 6 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 AB 1710 Page 7 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 AB 1710 Page 8 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. AB 1710 Page 9 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: AB 1710 Page 10 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 AB 1710 Page 11 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 : AB 1710 Page 12 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