BILL ANALYSIS Ó
SB 397
Page 1
Date of Hearing: August 13, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 397 (Hueso) - As Amended: June 24, 2013
SENATE VOTE : 39-0
SUBJECT : Enhanced Driver's Licenses
KEY ISSUE : Should California issue enhanced driver's licenseS
containing RFID Technology to person's who request them, so as
to expedite border crossings between California and Mexico?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill would authorize the Department of Motor Vehicles (DMV)
to enter into a Memorandum of Understanding with the federal
government to issue "enhanced driver's licenses" which serve as
both a driver's license and passport to persons who request
them. Pursuant to the federal Western Hemisphere Travel
Initiative (WHTI), persons entering the United States by land or
sea from Canada, Mexico, Bermuda, or the Caribbean must present
a passport, enhanced driver's license, or some other official
document that proves identity or citizenship. Before 9-11, land
travel across borders, especially between the U.S. and Canada,
tended to be somewhat lax and informal. However, more rigorous
enforcement since 9-11 has slowed crossings and led to longer
wait lines. To reduce congestion, WHTI authorized the use of
enhanced driver's licenses and identification cards, and the
U.S. Customs and Border Protection created "Ready Lanes"
dedicated to travelers with RFID-enabled travel documents.
Under WHTI, and rules promulgated by the Department of Homeland
Security (DHS), states that border Mexico and Canada may enter
into agreements with DHS that allow them to issue enhanced
driver's licenses that meet certain criteria, including use of
radio frequency identification (RFID) technology. Proponents of
this bill, mostly business groups and local officials from both
Southern California and Northern Mexico, argue that this measure
will reduce wait times and facilitate cross-border travel and
trade. Opponents contend that RFID-enabled documents, which
allegedly can be read at distances of up to 30 feet or more,
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pose a significant threat to personal privacy and could be
surreptitiously copied to permit unauthorized border crossings.
The author and proponents respond that RFID-enabled licenses
will not contain any personal information beyond a
randomly-assigned number and stress the voluntary nature of the
program. However, to address some of the privacy concerns, the
author will take minor amendments that are reflected in the bill
summary and analysis. Because of time constraints, however,
these amendments will be taken in the Assembly Appropriations
Committee if the bill passes out of this Committee. The
amendments, however, do not remove the opposition. The bill has
not received any negative committee or floor votes to this point
and recently passed out of the Assembly Transportation Committee
on a 15-0 vote.
SUMMARY : Authorizes the Department of Motor Vehicles (DMV) to
enter into a Memorandum of Understanding with a federal agency
to allow DMV to offer an enhanced driver's license, as defined,
to applicants who request it. Specifically, this bill :
1)Makes various legislative findings and declarations regarding
traffic congestion and wait times at points of entry between
California and Mexico and the potentially negative impact of
these wait times on international trade, travel, and commerce.
2)Authorizes the DMV to enter into a Memorandum of Understanding
(MOU) for the purpose of issuing an enhanced driver's license,
instructional permit, provisional license, or identification
card [hereafter EDL] to a person who is at least 16 years of
age, is a resident of California, and is a citizen of the
United States. Requires the applicant to submit sufficient
proof that meets the requirements of the Western Hemisphere
Travel Initiative to establish his or her identity, residency,
and citizenship, and to certify, under penalty of perjury,
that the information submitted is true and correct to the best
of the applicant's knowledge.
3)Prohibits an employer from requiring that an employee obtain
or use an EDL as a condition of employment, or take an adverse
action against an employee for refusing to do so.
4)Requires an applicant for an EDL to sign a declaration
acknowledging his or her understanding of radio frequency
identification (RFID) technology.
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5)Requires the EDL to include reasonable security measures,
including the use of tamper-resistant features, to protect
against unauthorized duplication or disclosure of personal
information.
6)Requires DMV to inform the applicant, either orally or in
writing, that the randomly assigned radio frequency
identification number can be read remotely without the
holder's knowledge, especially if the EDL is not enclosed in a
protective shield or similar tamper-resistant device.
7)Requires the EDL to include both of the following:
a) RFID technology that contains only a randomly assigned
number and that shall not contain any other personal data,
biometric information, or any number other than the
randomly assigned number. Specifies that the randomly
assigned number shall be encrypted if agreed to by the
Department of Homeland Security.
b) A machine-readable zone (MRZ) or barcode that can be
electronically read by the border patrol and contains only
as much information as is required by the Western
Hemisphere Travel Initiative to permit a border crossing.
8)Requires an applicant for an EDL to have his or her photograph
and signature captured or reproduced by DMV at the time of
application or renewal. Prohibits DMV from disclosing the
photograph or signature, or a copy of a digital image of any
required document, except that DMV may make the photograph and
signature available to the United States Customs and Border
Protection data base or as required by the Department of
Homeland Security for purposes of facilitating the purpose of
the Western Hemisphere Travel Initiative.
9)Makes the facial image, signature, and copies or digital
images of any documents required for application exempt from
public records request.
10)Permits DMV to deny an application for an EDL if it is not
satisfied with the genuineness of the applicant's supporting
materials, subject to the applicant's right to appeal the
denial, as specified.
11)Requires an applicant for an EDL to pay a fee, as set by the
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DMV but not to exceed $55, and provides that fees shall be
deposited in an account and to be used by DMV to implement the
provisions of this bill.
12)Requires DMV to make an annual report to relevant legislative
committees and requires the report to include information on
the number of enhanced driver's licenses and identification
cards issued, the effect of EDL use on wait times and traffic
congestion at points of entry, and whether or not there have
been any security or privacy breaches related to the use of
the EDL.
EXISTING LAW :
1)Requires DMV, upon proper application, to issue driver's
licenses and identification cards.
2)Authorizes, under the federal Western Hemisphere Travel
Initiative, the use of EDLs to prove identity and citizenship
for purposes of traveling between the United States, Canada,
Mexico, Bermuda, and the Caribbean, so long as the EDL meets
specified requirements, including radio frequency
identification (RFID) that signals a secure government data
base maintained by the United States Customs and Border
Protection. (Public Law 110-53.)
COMMENTS : The Western Hemisphere Travel Initiative (WHTI)
represents a joint effort by the Department of Homeland Security
(DHS) and United States Customs and Border Protection (CBP) to
implement provisions of the Intelligence Reform and Terrorism
Prevention Act (IRTPA) of 2004. As of January 1, 2009, WHTI
began requiring U.S. citizens traveling between the U.S. and
Canada, Mexico, Bermuda, and the Caribbean by land or sea to
present a valid U.S. Passport or other WHTI-compliant document.
Among the accepted documents are passports, a U.S. passport
card, Trusted Traveler Program cards (NEXUS, FAST, or SENTRI),
or an enhanced driver's license (EDL). Before 9-11, land travel
across borders, especially between the United States and Canada,
tended to be more informal and less rigorous, with border agents
often accepting a birth certificate or even a person's verbal
affirmation of citizenship. However, more rigorous enforcement
and new requirements under IRTPA slowed crossings and led to
longer wait lines. To reduce this congestion WHTI authorized
the use of EDLs (including state-issued identification cards),
and the CBP created "Ready Lanes" dedicated to travelers with
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RFID-enabled travel documents. The goal of the EDL program is
to strengthen border security and facilitate ease of entry into
the United States for U.S. Citizens, especially those driving
across the border on a regular basis.
Federal law requires that any border state wishing to adopt EDLs
must first sign a Memorandum of Understanding (MOU) with DHS.
So far four states - Vermont, New York, Michigan, and Washington
- have enacted authorizing legislation and already have EDLs in
place. New York was the first state to sign an MOU in 2007, and
thus has participated in the WHTI since the beginning.
For the most part the programs have met with success; for
example, the New York State DMV reports on its website that over
100,000 persons have availed themselves of the new licenses,
especially in upstate New York near the Canadian border. In
addition to decreasing overall wait times for all travelers, EDL
holders often use RFID-enabled "Ready Lanes" created by CBP.
According to these official websites, at least, use of RFID
allows border patrol agents to pull up a person's information
and photograph immediately without having to collect paper
documents, inspect them, and then key in any required
information. All of this is done for them when the traveler
holds the EDL up as he or she passes the RFID reader. The
system does not, of course, allow the EDL holder to simply pass
through; the border patrol agents must still make a visual
identification with the accessed photograph and may also ask
questions or inspect the EDL.
This bill would permit California citizens traveling across the
California-Mexico border to take advantage of this more
convenient and time-saving process. According to the author,
the idea for this bill grew out of his experience as Chair of
the Select Committee on California-Mexico-Bi-National Affairs,
where he became aware of the significant impact of border wait
times on our state's economy. Indeed, the author provided the
Committee with a 2007 report suggesting that long wait times
slow commerce and discourage personal trips across the
California-Mexico border. The report claims that delays at the
border at the San Ysidro, Otay Mesa, and Tecate points-of-entry
result in the loss of millions of dollars (and even billions) in
lost revenue and tens of thousands of jobs in the San Diego-Baja
region. (San Diego Association of Governments and the
California Department of Transportation, 2007 Update to Economic
Impacts of Wait Times at the San Diego-Baja California Border:
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Final Report.) Not surprisingly, many of the supporters of this
bill represent chambers of commerce and local officials who
believe that shorter wait times and more travel across the
border will translate into more trade and tourism. In addition
to these economic benefits, the author also believes that this
bill will allow persons who regularly cross the border to make
use of the RFID-enabled "Ready Lanes."
Under the MOU authorized by this bill, the DMV could only issue
an EDL to a person who requests it and is willing to pay the
designated fee. No one would be forced to obtain a license.
Although many of the details of the program would presumably be
specified in the MOU, the bill nonetheless sets forth a number
of specific requirements that the MOU must contain. For
example, the bill would specify that the RFID technology used
could only contain a random number, and not any other personal
information or biometric data; that the EDL would employ
reasonable security measures, including temper-resistant
features; that persons obtaining an EDL acknowledge their
understanding of RFID technology; and that applicants would be
informed that the random RFID number could be read remotely,
especially if the EDL is not protected by a protective shield or
some similar tamper-resistant device.
The bill also sets forth requirements for applying for an EDL.
In addition to paying a fee not to exceed $55 and submitting
documents proving identity and citizenship, applicants must also
agree to have their photograph and signature captured by DMV at
the time of application or renewal. The bill specifies that the
photograph or signature shall only be available to CBP and only
used for purposes authorized by WHTI. It exempts the
photograph, signature, or other required documents from required
disclosure under the Public Records Act. Finally, the bill
seeks to make the program self-funding. Proceeds from the
application fee will be deposited into the Enhanced Driver's
License and Identification Subaccount, which DMV will use to
implement the program.
Concerns about EDLs and Real ID: Although the EDL initiatives
adopted in other states appear to work smoothly according to
official reports, they have not been without criticism or
controversy. In some instances, the debate over the EDLs has
become confused with the debate over Real ID, the controversial
and still languishing 2005 federal law that requires state
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driver's licenses to meet certain standards if they are to be
accepted for "official government purposes," as defined by DHS.
However, EDL is not a Real ID. Indeed, the MOU framework
developed by DHS expressly states that the EDLs must be clearly
marked to show that they are "not acceptable for official U.S.
Government purposes, as that term is defined under Real ID."
(See "Memorandum of Agreement Between the New York State
Department of Motor Vehicles and the United States Department of
Homeland Security," October 26, 2007.) Real ID is supposed to
be for some still undefined federal "government purposes," while
EDLs are for the more limited and concrete purpose of
cross-border travel.
Privacy Concerns Surrounding the use of RFID: Much of the
concern relating to EDLs, and especially the DHS rule that they
include RFID technology, has focused on potential threats to
privacy. Despite some technical-sounding terminology, the basic
outline of how RFID and related technologies work is fairly easy
to understand. RFID "tags" or "chips" can be embedded into
objects, including documents, clothing, pets, and even people.
The RFID technology used in EDLs typically consists of a
microchip (that stores a randomly assigned number) and one or
more antennae. Remote "readers" can read this tag, via radio
waves. The reader constantly emits radio signals. As a person
or object with an RFID tag moves near the reader - the distance
varies depending upon the device - the antennae pick up the
signal and transmit the number stored on the RFID tag to the
reader. Most RFID tags, and apparently all of the ones used
thus far for EDLs are "passive," which means that they can only
be activated by the radio signal; others are "active," which
means that they can actively search out readers in the area. In
either case, an authorized reader with access to a secure
database can then transmit this number to the database where it
can be matched to information about the holder. The distinction
between "passive" and "active" tags is important because,
despite some claims to the contrary, EDLs do not "broadcast" any
information, personal or otherwise.
In some ways, RFID technology is a higher-tech version of bar
code and magnetic strip scanning. However, bar code and strip
scanning requires direct contact between the scanner and the
stored information (or at least the magnetic strip or barcode
must be in the direct line of sight of a laser). RFID readers,
on the other hand, can read the information stored on the RFID
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tag remotely. Many of these, like the security badges used in
the Legislature, must be held within a few inches of the reader.
Some RFID readers, however, may read tags from distances of 30
feet or more, according to some studies. Experts disagree on
the potential range of RFID readers in the future, but as
technology advances it seems quite reasonable to assume that
those ranges will increase. However, the fact that RFID tags
can be read at any distance creates the possibility that
information stored on an identification document could be read
without the holder's knowledge or consent.
Information on Stored on the RFID Tag : Given that RFID tags can
be read at a distance, and potentially without the holder's
knowledge, the critical privacy concern relates to the kind of
information that is actually stored on the RFID tag and the
usefulness of that information to any unauthorized reader.
According to CBP and agency websites in the four states that
have adopted EDLs, the RFID chip only contains a randomly
assigned number that has no meaning until an authorized reader
transmits it to a secure government data base, where the random
number is then matched to information in the secure data base.
However, according to some privacy rights groups, RFID tags can
apparently contain other kinds of information, such as a name,
address, a credit card number, or even a visual image. Some of
the opposition to this bill on this point, however, appears to
misread the language of the bill. For example, the Consumer
Federation of California writes that this bill requires the
licenses to "contain, through RFID technology, a person's
'biographic and biometric' data." In fact, the bill in print
does not say this: it says that the license will contain RFID
technology that signals a secure system that contains such
information. Indeed, the bill expressly states that the RFID
chip will contain "only a randomly assigned number" and
expressly states that it "shall not contain any personal data,
biometric information, or number other than the randomly
assigned number." [Emphasis added.]
Dangers Posed by Random RFID Number Appear to be Exaggerated :
Even if the RFID tag contains only a random number, however,
privacy concerns do not necessarily stop there. For example,
privacy advocates claim that security measures must address more
than the ability of the reader to access intelligible
information from the tag; they must also address potential
security breaches along the entire transmission process from
tag, to reader, to computer database. Proponents of RFID, on
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the other hand, claim that RFID applications are confined to a
closed system of authorized tags, readers, and databases within
that system. Even if outsiders with remote readers obtained
information from an RFID tag, that "information" will only
consist of a random number that is only intelligible to persons
within the system or to those who can access that system. If an
unauthorized person has accessed a secure government database,
then clearly there is bigger problem than the unauthorized
reading of the random number on an RFID tag. That number does
not provide access to a database or make it easier to hack the
data base. Rather, the number will merely allow the border
patrol, or anyone who already has access to the data base, to
pull up stored data to which the number refers. If an
unauthorized person could access the data base, he or she would
not need the random RFID number.
Opponents also contend that the random number can itself become
a piece of personally identifiable information, like a social
security number, which was originally more or less a random
number that nonetheless has become permanently associated with
the person to which it was assigned for the limited purpose of
tracking social security benefits. However, the danger that
results from the unauthorized disclosure of a social security
number stems from the fact that a social security number is used
for identification purposes in a variety of other contexts, such
as obtaining credit, opening a bank account, or applying for a
job. Comparisons between the random RFID number and a social
security number appear to be inapt, however. Holders of EDLs
will most likely not even know their random number, much less be
asked to provide it when applying for employment or credit or on
any of the other occasions in which a social security number is
currently requested. Finally, to the extent that there is any
danger of unauthorized reading of the random number, this bill
takes additional precautions. For example, this bill would
require encryption, if agreed to by DHS, and other "reasonable
security measures to protect against unauthorized disclosure of
personal information regarding the person who is the subject of
license, permit, or card."
Although the bill does not specify what those "reasonable
security measures" shall consist of, they will require, at a
minimum, tamper-resistance features to prevent unauthorized
duplication or cloning. This language is consistent with the
authorizing legislation enacted in other states. Moreover,
according to agency websites of the states that have entered
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into MOUs with DHS, the licenses appear to adopt standard
tamper-resistant security measures, such as a protective
"sleeve" or "Faraday shield" that covers the EDL and thereby
prevents unauthorized reading of the RFID chip - so long as the
sleeve is in place. Some privacy groups claim that these
shields are not always adequate - in part because they are
apparently not always impenetrable, and in part because there is
no guarantee that people will use them. (For example, banks
often place debit cards in sleeves when they first issue them
and, almost as often, people throw away the sleeve.) However,
this bill, like the authorizing legislation in other states,
requires an applicant to sign a declaration acknowledging his or
her understanding of RFID technology. As proposed to be
amended, the DMV would also be required to inform applicants
that the random RFID number could be read without the holder's
knowledge, especially if the holder does not use a protective
sleeve or tamper resistant device. If a person chooses not to
use the protective sleeve - or whatever tamper-resistant device
the MOU ultimately calls for - that will be EDL holder's choice,
just as it will be a person's choice to request an EDL in the
first place.
RFID and Possible Security Concerns: Opponents also contend
that using RFID technology could pose security as well as
privacy risks. That is, even if an RFID reader cannot access
the secure data base it could potentially copy the random number
and use it to create a counterfeit license. According to the
ACLU of Washington State, studies suggest that such duplication
is possible. However, the bill appears to anticipate this
problem by specifying that security measures shall include
"tamper-resistance features to prevent unauthorized duplication
or cloning." In addition, it should be noted that even if a
counterfeit EDL were made with the help of a surreptitious
reader, the border patrol must still visually determine that the
person presenting the EDL matches the photograph that is pulled
up from the secure database. Obviously there is no foolproof
means of preventing a determined person from making counterfeit
EDLs, just as there is no foolproof means of preventing that
person from obtaining counterfeit copies of regular driver's
licenses or passports or any other form of identification.
PROPOSED AUTHOR AMENDMENTS TO BE TAKEN IN APPROPRIATIONS
COMMITTEE: The author wishes to take the following amendments
to address some of the privacy concerns raised by the ACLU.
Even though these amendments will not remove the ACLU
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opposition, they address some of their concerns. Because of
time constraints, however, these amendments will be taken in the
Appropriations Committee.
- On page 6, line 1, page 6, line 3, and page 7, line 1,
change "facial image" to "photograph"
- On page 5 line 21 after "any" insert: other
- On page 5 after line 35 insert:
(g) The department shall inform the applicant, either orally or
in writing, that the randomly assigned radio frequency
identification number can be read remotely without the holder's
knowledge, especially if the enhanced driver's license,
instruction permit, provisional license, or identification card
is not enclosed in a protective shield or similar
tamper-resistant device.
- On page 7 line 28 after "15405" insert (a) and after
line 27 insert:
(b) Sections 15401-15405 are not intended to conflict
with any other state or federal law.
ARGUMENTS IN SUPPORT : According to the California Chamber of
Commerce, the "ports of entry along the California-Mexico border
are among the busiest ports in the world." The Chamber claims
that each year forty-five million vehicle passengers cross the
border at one of six points of entry, and that "the average wait
for travelers at these ports is over an hour." The Chamber
further claims that these delays "result in a loss of eight
million trips each year," and that in San Diego County alone
this translates into an estimated loss of $1.2 billion in
revenues. The Chamber believes that this bill will relieve
border congestion by allowing travelers to use "ready lanes,"
and that it will allow CBP officers to quickly assess
information "and focus on the traveler's vehicle as opposed to
scanning documents - reducing wait time by up to 60%."
The Imperial County Transportation Commission supports this bill
for substantially the same reasons, claiming that border wait
times cause "a devastating loss of nearly $1.5 billion in
revenues, 3.4 million potential working hours, 39, 500 jobs, and
$59 million in wages annually in the San Diego and Imperial
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region alone." Several other business groups, both from
Southern California and from Baja California, support this bill
and cite similar statistics for the economic impact on their
respective locales.
ARGUMENTS IN OPPOSITION : The ACLU opposes this bill primarily
because of the privacy or security risks associated with the use
of RFID and the collection of facial images by the DMV. ACLU
believes that this bill will "create a biometric database with
Californians' facial scans and signatures" and thereby "raises
surveillance, tracking, and security questions that deserve
deliberate attention." Citing recently publicized revelations
that the National Security Administration (NSA) collected
information about American citizens, ACLU fears that this bill
will create a new data base that could lead to even more
surveillance and threats to privacy. For example, ACLU cites
the 2001 incident in which Tampa police allegedly scanned the
faces of tens of thousands of people attending the Super Bowl.
Similarly, ACLU reasons, law enforcement could scan the faces of
persons attending rallies, strikes, or protests and compare the
scanned images to images stored in the DMV or CBP database, or
any other government database to which DMV would be authorized
to submit them. ACLU also suggests that as RFID readers become
more readily available, such readers could be set up at various
locations, tracking the movements of U.S. citizens as they pass
by hidden readers. Finally, ACLU cites possible security
concerns, citing the prospect that criminals might not only read
but duplicate the random RFID number and create counterfeit
EDLs. Although ACLU welcomes proposed amendments to provide
more notice to persons who request EDLs, it believes that the
bill still lacks sufficiently strong and robust privacy
protections.
Similar to the ACLU, the Consumer Federation of California (CFC)
opposes this bill because it "presents a myriad of privacy
concerns for Californians," especially in light of the use of
RFID technology. CFC contends that the use of RFID technology
will "expose those who possess one of these licenses to remove
theft of their private information and "even specifies that
these licenses would contain, through RFIC technology, a
person's 'biographic and biometric data'." [NOTE: As discussed
above, the bill does not say that the RFID technology will
contain biographic and biometric data; in fact, the bill
expressly states that the RFID technology will contain only a
random number and that it shall not contain any biometric
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information.]
Previous legislation: AB 2113 (Hueso) of 2012, was similar
legislation to this bill. That bill was held on the Assembly
Appropriations Committee suspense file.
REGISTERED SUPPORT / OPPOSITION :
Support
California Chamber of Commerce
City of Chula Vista, Office of the Deputy Mayor
City of San Diego
Gobernador Del Estado De Baja California, Jose Gaudalupe Osuna
Millan
Imperial County Board of Supervisors
Imperial County Transportation Commission
Otay Mesa Chamber of Commerce
San Diego Tijuana Smart Border Coalition
South County Economic Development Council
Opposition
ACLU
Consumer Federation of California
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334