BILL ANALYSIS Ó
SENATE TRANSPORTATION & HOUSING COMMITTEE BILL NO: SB 397
SENATOR MARK DESAULNIER, CHAIRMAN AUTHOR: hUESO
VERSION: 4/8/13
Analysis by: Erin Riches FISCAL: yes
Hearing date: April 30, 2013
SUBJECT:
Vehicles: enhanced drivers' licenses
DESCRIPTION:
This bill authorizes the Department of Motor Vehicles (DMV) to
issue enhanced driver's licenses (EDLs), which individuals can
use at border crossings as proof of both identity and
citizenship.
ANALYSIS:
Existing law authorizes the DMV to issue driver's licenses and
identification cards. In order to obtain a driver's license or
identification card, an individual must provide, among other
things, a social security number, verification of birth date and
legal presence in the U.S., and a thumb print. The DMV encodes
the individual's basic personal information in a magnetic strip
on the back of the license or card.
To address the need for increased security measures after the
9/11 terrorist attacks, Congress passed the Intelligence Reform
and Terrorism Prevention Act of 2004 (Public Law 108-458). To
implement this legislation, with an eye to reducing border
congestion, the Department of State and Department of Homeland
Security (DHS) established a plan called the Western Hemisphere
Travel Initiative (WHTI). The WHTI requires U.S. and Canadian
travelers to present a passport or other document proving
identity and citizenship to enter the country beginning in 2007
for air travel into the U.S. and in 2009 for land and sea travel
into the U.S. The EDL is one of the documents meeting WHTI
requirements.
An EDL is a driver's license that an individual can also use as
a travel document to enter the U.S. from Mexico, Canada, the
Caribbean, and Bermuda. A key feature distinguishing an EDL
from a California driver's license is Radio Frequency
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Identification (RFID) technology. RFID systems allow
information contained in a wireless device or "tag" to be read
from a distance. RFID technology can be found in car keys,
security access cards, and highway toll lanes (such as
"FasTrak").
Under WHTI, U.S. Customs and Border Protection (border patrol)
created "ready lanes" at some ports of entry, including Calexico
and Otay Mesa on the California-Mexico border, dedicated to
travelers with RFID-enabled travel documents such as EDLs.
Frequent travelers who hold EDLs can use these ready lanes to
expedite the inspection process. Specifically, as a traveler
approaches inspection lanes at the border, authorized readers
read the EDL from 10 to 15 feet away. The WHTI provides that no
personal information is stored on the EDL, but rather a number
that points to information housed in the secure database. Upon
reading this number, the reader signals the database to display
biographical information, a photo, and the results of
terrorist/criminal checks to the border patrol officer as the
vehicle pulls up to the inspection booth. While the officer
must still conduct a visual inspection, and potentially
interview the driver, he or she does not have to take the time
to collect paper documents and key them in. Four states
(Michigan, New York, Vermont, and Washington), as well as
several Canadian provinces, are currently issuing EDLs.
This bill :
Authorizes DMV to enter into a memorandum of understanding
with a federal agency to obtain approval to issue an EDL,
instruction permit, provisional license, or identification
card (hereafter referred to as EDL) that meets WHTI
requirements. Authorizes DMV to issue or renew an EDL to an
applicant who is 16 years or older and is both a California
resident and a U.S. citizen.
Requires an applicant to submit proof of identity, residency,
and citizenship and to certify under penalty of perjury that
the information is valid. Also requires the applicant to sign
a declaration acknowledging his or her understanding of RFID
technology.
Requires DMV to include in the EDL reasonable security
measures to protect against unauthorized duplication or
disclosure of the holder's personal information. Limits the
RFID technology in the EDL to contain only a randomly assigned
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number, encrypted subject to DHS approval, and a barcode that
can be read by border patrol.
Prohibits an employer from requiring an employee to apply for
or use an EDL as a condition of employment or to discharge,
discriminate against, or retaliate against an employee who
refuses to apply for or use an EDL.
Requires an applicant for an EDL to allow DMV to capture and
reproduce his or her facial image and signature at the time of
application or renewal and provides that these items shall
only be available to border patrol or DHS.
Establishes a non-refundable fee of $75 for application or
renewal, in addition to other fees required by state law, to
be deposited in a special account within the Motor Vehicle
Account.
Requires DMV to submit an annual report to the Legislature
including, but not limited to, information on the number of
EDLs and related documents issued, the effect on wait times
and traffic congestion at border points of entry, and whether
or not there have been any security or privacy breaches
related to the use of EDLs or related documents.
COMMENTS:
1.Purpose . The author states that the average wait time at the
California-Mexico border is 70 minutes. Delays result in lost
productivity, wages, working hours, and foregone business
income at the regional, state, and national levels. The
Imperial County Transportation Commission, writing in support
of this bill, notes that eliminating the need for a border
patrol officer to key in a traveler's information translates
into a 60 percent faster processing time over manual queries.
By authorizing DMV to move forward with creating an EDL, this
bill will help reduce border wait times and increase economic
gains produced by efficient and secure cross-border travel.
2.EDLs and RFID technology . An RFID tag with a power source is
an "active" tag that can transit a radio wave transmitting
information to any reader in the area. An RFID tag without a
power source is a "passive" tag; a reader can remotely read
the information when the tag gets within a certain range of
the reader. While an RFID tag is similar to bar code
technology, it is different in that it can be read remotely,
without having to swipe the bar code, and in that much more
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information can be stored on an RFID tag chip than on a bar
code. The EDL proposed in this bill would include a passive
tag. In addition, as required by WHTI, the bill specifies
that the EDL would contain only a number that points to
information housed in the border patrol's secure database.
3.Privacy concerns . The American Civil Liberties Union (ACLU)
notes that this bill sets up a framework that could be
expanded to any Californian who carries a driver's license or
identification card. In addition, creating a state database
of facial images and personal information, accessible by the
federal government, could pose a threat to anonymity and
anonymous speech and potentially lead to surveillance by
governmental and private entities. The ACLU also notes that
an analysis of the Washington State EDL found its security
protections insufficient and that the Smart Card Alliance, an
industry trade group, has criticized EDL technology as being
too vulnerable to criminal access and duplication.
4.Previous legislation . AB 2113 (Hueso) of 2012 was virtually
identical to this bill. Both the Assembly Transportation and
Judiciary Committees passed the bill with no "no" votes but
the Assembly Appropriations Committee held it on the suspense
file. To address numerous privacy concerns raised by the RFID
technology included in the EDL, the author took several
amendments proposed by the Assembly Judiciary Committee. That
language is included in this bill.
POSITIONS: (Communicated to the committee before noon on
Wednesday, April 24,
2013.)
SUPPORT: California Chamber of Commerce
City of Chula Vista
Imperial County Transportation Commission
South County Economic Development Council
OPPOSED: American Civil Liberties Union of California