BILL ANALYSIS Ó
SB 397
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Date of Hearing: July 1, 2013
ASSEMBLY COMMITTEE ON TRANSPORTATION
Bonnie Lowenthal, Chair
SB 397 (Hueso) - As Amended: June 24, 2013
SENATE VOTE : 39-0
SUBJECT : Vehicles: enhanced driver's license
SUMMARY : Allows the Department of Motor Vehicles (DMV) to issue
enhanced driver's licenses (EDLs) that are acceptable at border
crossings as proof of identity and citizenship.
Specifically, this bill :
1)Makes findings and declarations regarding traffic congestion
at California/Mexico border crossings and the federal
government's endorsement of EDLs that allow for far faster
processing of border crossers.
2)Allows DMV to enter into a memorandum of understanding with a
federal agency for the purposes of obtaining approval for the
issuance of an EDL, instruction permit, provisional license,
or identification (ID) card (all of these instruments, other
than EDLs, are hereafter referred to as "related documents")
that is acceptable as proof of identity and citizenship
pursuant to the Western Hemisphere Travel Initiative (WHTI).
3)Allows DMV, upon the request of an applicant, to issue an
initial EDL or related document, or renew any of these
documents, for a person who is 16 years of age or older and is
a resident of both California and the United States.
4)Requires the applicant to: submit sufficient proof that meets
the requirements of the WHTI to establish his or her identity,
residency, and citizenship; certify, under the penalty of
perjury, that the information he or she has submitted is true
and correct to the best of his or her knowledge; and sign a
declaration acknowledging his or her understanding of radio
frequency identification (RFID) technology.
5)Requires DMV to include in the EDL or related document
reasonable security measures to protect against unauthorized
disclosure of personal information regarding the person who is
the subject of the document.
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6)Requires the EDL or related document to include RFID
technology which will contain, if agreed to by the United
States Department of Homeland Security (DHS), a randomly
assigned identification number and a machine readable zone or
barcode that can be electronically read by the cross border
patrol.
7)Specifies that the EDL or related document shall not contain
any personal data, biometric information, or any number other
than the randomly assigned number and the information gathered
for the machine readable zone or barcode shall be limited to
the information required by the WHTI.
8)Allows an EDL be suspended, revoked, or restricted as are
other driver's licenses under existing law.
9)Prohibits an employer from requiring an employee to apply for
or use and EDL or identification card as a condition of
employment and prohibits an employer from discharging or
discriminating an employee who refuses to apply for or use an
EDL or identification card.
10)Requires an applicant applying for an initial EDL or related
document to have his or her facial image and signature
captured or reproduced by DMV at the time of application or
renewal.
11)Limits the availability of facial images and electronic
signatures to the U.S. Customs and Border Protection database
and to DHS for the purposes of carrying out the provisions
specified under the WHTI and additionally prohibits DMV from
disclosing an applicant's facial image, signature, or digital
images for any purposes not specified under the WHTI.
12)Requires DMV to examine and verify the genuineness,
regularity, and legality of an application and proof submitted
for an initial or renewal of an EDL or related document.
13)Allows DMV to require the submission of additional
information to establish identity, residency, and citizenship.
14)Requires DMV to deny an application or renewal of an EDL or
related document if it is not satisfied with the genuineness,
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regularity, and legality of the application or supporting
documentation or the truth of any statement contained in the
application or supporting documentation, or for any other
reason authorized by law.
15)Allows an applicant to appeal DMV's denial of an application
for the issuance or renewal of an EDL or related document.
16)Requires DMV to retain copies or digital images of documents
provided by applicants for EDLs and related documents.
17)Requires DMV, after denying an application for an EDL or
related document, to retain the facial image of the applicant
and the reason for denial for not less than one year, unless
fraud is suspected, in which case the applicant's facial image
and the reason for denial must be retained for not less than
10 years.
18)Exempts the facial image, signature, copies, and digital
image of documents required for EDLs and related documents
from public disclosure pursuant to the Public Records Act.
19)Prohibits, except as required by federal law, information
submitted by an applicant for an EDL or related document from
being disclosed to a foreign nation.
20)Requires DMV to set the application fee in an amount not to
exceed its regulatory cost of issuing or renewing an EDL or
$55, whichever is less.
21)Requires these additional fees to be deposited into the
Enhanced Driver's License and Identification Card subaccount,
which this bill establishes in the Motor Vehicle Account.
22)Requires moneys in the subaccount, upon appropriation, to be
expended by DMV to implement this EDL program.
23)Requires moneys in the subaccount, including any interest
accrued, to remain in the subaccount at the end of each fiscal
year.
24)Requires DMV to submit an annual report to the following
committees: Assembly Transportation, Assembly Judiciary,
Senate Transportation and Housing, and Senate Judiciary. The
annual report will include data on (but not be limited to) the
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number of EDL's and information cards issued, the effect on
wait times, traffic congestion at points of entry, and any
identified security or privacy breaches related to the use of
EDL's and identification cards.
EXISTING LAW: Establishes procedures for the issuance of
driver's licenses, instruction permits, and ID cards but makes
no provision for any of these documents to meet the WHTI
standards that would allow them to be used as proof of identity
and citizenship under a federal program.
FISCAL EFFECT : Unknown
COMMENTS : Current state law does not allow DMV to implement a
process to issue EDL's to applicants within the state. Travelers
that currently cross the U.S.-Mexico border must use other
documentation to present proof of identify such as a passport
which has minimal impact on expediting a traveler's processing
time across the border. The author's office states that the
intent of this bill is to reduce travel and processing times and
strengthen security at border crossings as a means of
stimulating cross-border business activities.
According to the Department of U.S. Customs and Border
Protection (CBP), an EDL is "the standard document issued by a
state or (Canadian) province that has been enhanced in process,
technology and security to denote identity and citizenship for
purposes of entering into the United States at the land and sea
port of entry." CBP goes on to explain, "When the EDL is
presented by a United States or Canadian citizen traveler, no
other documentation is required for purposes of proving identity
and citizenship."
An EDL may be used in "Ready Lanes," which are vehicle lanes
operated by CBP at border crossings exclusively for travelers
who possess RFID-enabled travel documents (which may also
include U.S. passport cards and so-called "trusted travel
documents"). These documents allow information contained in a
wireless device or "tag" to be read from a distance at Ready
Lanes, similar to those contained in car keys and employee
identifications. This technology eliminates the need to key-in
traveler information and translates into faster processing than
manual queries.
The genesis of the EDL was the need for heightened security
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measures after the 9/11 terrorist attacks. Congress passed the
Intelligence Reform and Terrorism Prevention Act of 2004
(IRTPA), requiring U.S. and Canadian travelers to present a
passport or other document that denotes identity and citizenship
when entering the U.S. The WHTI went into effect on June 1,
2009, for land and sea travel into the U.S. The goal of WHTI is
to facilitate entry for U.S. citizens and legitimate foreign
visitors, while increasing U.S. border security. The states of
Washington, New York, Michigan and Vermont as well as four
Canadian provinces have all successfully implemented EDLs.
Furthermore, according to the author, in a report issued in 2006
by the San Diego Association of Governments: "Each year, 45
million vehicle passengers and 15 million pedestrians cross the
border into California from the six ports of entry -- San
Ysidro, Otay Mesa, Tecate, Calexico, Calexico East and Andrade.
In San Ysidro, the busiest port of entry in the world, an
astounding 50,000 vehicles and 25,000 pedestrians are processed
into the U.S. each day. At today's average wait time of 70
minutes, more than 8 million trips are lost due to congestion.
This is a loss of nearly $1.3 billion in revenues, three million
potential working hours, 35,000 jobs and $42 million in wages
annually in the San Diego region alone. There is an urgent
economic need to responsibly expedite the movement of people
across the California-Mexico border. EDL's will help decrease
border wait times by at least 30 minutes and encourage people to
travel from Mexico into California using CBP's Ready Lanes. As
more travelers obtain RFID-enabled travel documents, CBP
converts more vehicle lanes into Ready Lanes. California's
economy will be the primary beneficiary of this expedited
travel."
RFID is a controversial technology that tends to raise privacy
concerns. However, in response to privacy concerns, CBP states
that it "believes that the practices, processes, and procedures
we institute at the border mitigate the risks of cloning,
skimming, and 'killing' RFID tags embedded in documents." CBP
further points out that, "There is no personally identifiable
information on the RFID tags. The tag is simply a unique
reference number that links to a secure law enforcement
database?RFID technology has been commercially available in one
form or another since the 1970s. It is now part of our daily
lives and can be found in car keys, employee identification,
medical history/billing, highway toll tags, and security access
cards?In utilizing vicinity RFID technology, DHS adheres to
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stringent requirements for safeguarding personal data."
Additionally, it should be noted that the use of EDLs is
entirely voluntary and the bill explicitly requires applicants
to sign a declaration acknowledging their understanding of RFID
technology.
Writing in opposition to this bill, the American Civil Liberties
Union stresses "profound privacy concerns" exists with a number
of technologies associated with EDLs, including RFID and
biometric facial scans. Particularly, the ACLU argues that this
bill fails to include "robust security and privacy protections"
to ensure EDL users are sufficiently protected and personal
information is not subject to inappropriate use by government
agencies.
EDLs would provide another option for cross-border travelers.
With the ability to expedite crossing the U.S.-Mexico border
using "ready lanes" and RFID technology, travelers may see this
alternative serving a more beneficial option in meeting their
traveling needs.
Previous legislation: AB 2113 (Hueso) of 2012, was similar
legislation to this bill. That bill was held on the Assembly
Appropriations Committee suspense file.
Double-referral : This bill is also referred to the Assembly
Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Chamber of Commerce
Pamela Bensoussan, Deputy Mayor, City of Chula Vista
Imperial County Board of Supervisors
Imperial County Transportation Commission
Otay Mesa Chamber
San Diego-Tijuana Smart Boarder Coalition
South County Economic Development Council
City of San Diego
Jose Guadalupe Osuna Millan, Governor, Baja California
Opposition
American Civil Liberties Union of California
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Consumer Federation of California
Privacy Rights Clearinghouse
Electronic Frontier Foundation
Privacy Activism
Analysis Prepared by : Manny Leon / TRANS. / (916) 319-2093