BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 83 (Gatto)
          Version: June 25, 2015
          Hearing Date: July 7, 2015
          Fiscal: No
          Urgency: No
          TH


                                        SUBJECT
                                           
                          Information Practices Act of 1977

                                      DESCRIPTION  

          This bill would expand the definition of "personal information"  
          for which businesses must implement and maintain reasonable  
          security procedures and practices in order to protect the  
          information from unauthorized access, destruction, use,  
          modification, or disclosure.  Specifically, this bill would add  
          geophysical location information, tax identification numbers,  
          passport numbers, biometric information, usernames or email  
          addresses in combination with passwords or other specified  
          authentication credentials, and signatures to the list of  
          protected personal information.  This bill would also establish  
          certain minimum criteria for the reasonable security procedures  
          and practices that must be followed, including identifying  
          reasonably foreseeable internal and external risks and regularly  
          assessing the sufficiency of security safeguards in place to  
          control those risks.

                                      BACKGROUND  

          In 2004, the Legislature enacted AB 1950 (Wiggins, Ch. 877,  
          Stats. 2004), which established broadly applicable security  
          standards for the protection of personal information about  
          California residents that is owned or leased by businesses.   
          Before AB 1950 became law, federal and state laws generally  
          provided only industry-specific requirements for the protection  
          of personal information.  For example, state medical privacy  
          laws like the Confidentiality of Medical Information Act (Civ.  









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          Code Sec. 56 et seq.) govern the use and sharing of medical  
          information by health care entities, but do not regulate this  
          information when obtained by other businesses.

          AB 1950 required businesses that own or license personal  
          information -- including social security numbers, payment card  
          information, and medical information -- about a California  
          resident to 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.  Despite this requirement, the frequency at which  
          data breaches expose the personal information of California  
          residents has increased dramatically since 2004.  An October  
          2014 article in the Los Angeles Times made the following  
          observations about this trend:

            Data breaches soared last year in California as cybercriminals  
            leaped over digital security gates to endanger the personal  
            data of millions of consumers, California Atty. Gen. Kamala  
            Harris said.  Harris, in a report released Tuesday,  
            highlighted the effect that headline-producing data breaches  
            had on the Golden State: two massive hacks last year at Target  
            Corp. and daily deals website LivingSocial each hit roughly  
            7.5 million Californians.  In all, 18.5 million people in the  
            state had their data stolen last year, a more than 600  
            [percent] jump from 2012.  The number of breaches reported to  
            Harris' office climbed 28 [percent] to 167, and is expected to  
            rise again in 2014.  "Data breaches ? threaten the privacy,  
            the security and the economic well-being of consumers and  
            businesses," Harris said at a news conference in Los Angeles. 

            California residents aren't any more prone to data hijacking  
            than others, but an unusual state law requires businesses and  
            state agencies to notify customers of any breach involving  
            more than 500 accounts.  That law resulted in the California  
            Data Breach Report, which underscored the difficulties faced  
            by companies who are constantly racing against wily thieves to  
            secure sensitive information.  The parade of companies that  
            has been targeted recently by hackers includes Home Depot,  
            Michaels, Neiman Marcus and P.F. Chang's.

            Security experts predict that the number of breaches,  
            especially on a big scale, will keep growing.  "The data  
            breaches are going to continue and will probably get worse  








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            with the short term," said Jim Penrose, former chief of the  
            Operational Discovery Center at the National Security Agency.
            . . .
            Harris said businesses need to adopt stronger encryption  
            technologies that safeguard sensitive consumer data.  And  
            retailers must make their breach notifications to consumers  
            more visible and should upgrade their systems to handle  
            payment cards equipped with microchips, which make cards more  
            difficult to counterfeit, Harris said.  (Shan Li and Andrew  
            Khouri, Data Breaches Jump in California and are Expected to  
            Keep Climbing, Los Angeles Times (Oct. 28, 2014)  
             [as of Jun. 22, 2015].)

          This bill responds to the growing frequency of data breaches by  
          adding additional requirements to the "reasonable security  
          procedures and practices" that businesses are mandated to  
          implement under existing law with respect to personal  
          information.  Recognizing the sensitivity of such information,  
          this bill would also expand the definition of "personal  
          information" subject to protection to include tax identification  
          numbers, passport numbers, and any other unique  
          government-issued identification numbers; geophysical location  
          information; biometric information; usernames or email addresses  
          in combination with passwords or other specified account  
          credentials, and signatures.

                                CHANGES TO EXISTING LAW
           
          Existing law  , the California Constitution, provides that all  
          people are by nature free and independent and have inalienable  
          rights.  Among these are enjoying and defending life and  
          liberty, acquiring, possessing, and protecting property, and  
          pursuing and obtaining safety, happiness, and privacy.  (Cal.  
          Const, art. I, Sec. 1.)

           Existing law  requires state agencies, under the Information  
          Practices Act (IPA), to establish appropriate and reasonable  
          administrative, technical, and physical safeguards to ensure  
          compliance with the IPA, to ensure the security and  
          confidentiality of records, and to protect against anticipated  
          threats or hazards to their security or integrity which could  
          result in any injury.  (Civ. Code Sec. 1798.21.)

           Existing law  requires a business that owns, licenses, or  








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          maintains personal information about a California resident to  
          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.  (Civ. Code Sec.  
          1798.81.5(b).)

           Existing law  requires a business that discloses personal  
          information about a California resident pursuant to a contract  
          with a nonaffiliated third party that is not subject to the  
          restriction above to 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.  (Civ. Code Sec.  
          1798.81.5(c).)

           Existing law  defines "personal information" to mean an  
          individual's first name or first initial and his or her last  
          name in combination with any one or more of the following data  
          elements, when either the name or the data elements are not  
          encrypted or redacted:
           social security number;
           driver's license number or California identification card  
            number;
           account number, credit or debit card number, in combination  
            with any required security code, access code, or password that  
            would permit access to an individual's financial account; and
           medical information, as specified.  (Civ. Code Sec.  
            1798.81.5(d).)

           Existing law  states that "personal information" does not include  
          publicly available information that is lawfully made available  
          to the general public from federal, state, or local government  
          records.  (Civ. Code Sec. 1798.81.5(d).)

           This bill  would specify that "reasonable security procedures and  
          practices" as they pertain to the storage and transmission of  
          personal information shall require, at a minimum, the security  
          of that information to the degree that any reasonably prudent  
          business would provide.

           This bill  would further specify that "reasonable security  
          procedures and practices" shall, at a minimum, require  
          businesses to:








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           identify reasonably foreseeable internal and external risks to  
            the privacy and security of personal information that could  
            result in the unauthorized disclosure, misuse, alteration,  
            destruction, or other compromise of the information;
           establish, implement, and maintain safeguards reasonably  
            designed to ensure the security of the personal information,  
            including, but not limited to, protecting against unauthorized  
            loss, misuse, alteration, destruction, access to, or use of  
            the information;
           regularly assess the sufficiency of any safeguards in place to  
            control reasonably foreseeable internal and external risks,  
            and evaluate and adjust those safeguards in light of the  
            assessment; and
           evaluate and adjust any material changes in the operations or  
            business arrangements of the business, or any other  
            circumstances, that create a material impact on the privacy or  
            security of personal information under control of the  
            business.

           This bill  would provide that the reasonableness of the security  
          procedures and practices shall be determined in light of all of  
          the following:
           the type of personal information under the business's control;
           the foreseeability of threats to the security of the  
            information;
           the existence of widely accepted practices in administrative,  
            technical, and physical safeguards for protecting personal  
            information; and
           the cost of implementing and regularly reviewing the  
            safeguards.

           This bill  would expand the definition of "personal information"  
          to include the following:
           a tax identification number, passport number, or any other  
            unique government-issued identification number;
           geophysical location information;
           biometric information; 
           a username or email address in combination with a password or  
            security question and answer that would permit access to an  
            online account; and
           signature.
           This bill  would define geophysical location information to mean  
          any location data generated to assess the past or current  
          location of, or travel by, an individual, including but not  
          limited to, geographic coordinates, street address, or WiFi  








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          positioning system.

          This bill  would define "biometric information" to mean data  
          generated by automatic measurements of an individual's  
          biological characteristics that are used by the owner or  
          licensee to authenticate an individual's identity, such as a  
          fingerprint, voice print, eye retinas or irises, or other unique  
          biological characteristic.

           This bill  would define "health insurance information" to mean an  
          individual's insurance policy number or subscriber  
          identification number, any unique identifier used by a health  
          insurer to identify the individual, or any information in an  
          individual's application and claims history, including any  
          appeals records.

                                        COMMENT
           
           1.Stated need for the bill
           
          According to the author:

            The California Information Practices Act of 1977 sets the  
            rules for the collection, maintenance and dissemination of  
            information that identifies an individual to guarantee that  
            privacy is protected to the greatest extent possible.   
            [California's data protection statutes], among other things,  
            [require] businesses that own, license, or maintain personal  
            information about Californians to provide reasonable security  
            for that information.

            Before the United States was rocked by a December 2013 data  
            breach at Target stores that captured the information of  
            almost 40 million credit and debit cards, many consumers did  
            not think about the protection of their personal and  
            transaction data.  Since the Target incident, however, data  
            breaches have haunted consumers, businesses, and government  
            entities, alike.   

            While credit card information is valuable and breaches have  
            affected businesses like Home Depot, Neiman Marcus and JP  
            Morgan Chase, credit card information is not the only lure.   
            Hackers have hit different branches of California government,  
            including the Bureau of Automotive Repair, Mt. Diablo Unified  
            School District and the California Department of Public  








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            Health.  In May 2014, hackers breached a database owned by  
            ride-sharing app Uber, which contained the names and drivers'  
            license numbers of 50,000 of its drivers.  Then, in November  
            2014, Sony hackers not only released five unreleased films,  
            but they also posted 47,000 employee Social Security numbers  
            online, which appeared on more than 600 publicly-posted files.  
             These numbers appeared with other personal information, such  
            as full names, dates of birth, and home addresses.  And, just  
            last February, 80 million Anthem clients had their names,  
            dates of birth, Social Security numbers, addresses, phone  
            numbers, email addresses and employment information stolen.  

            In today's world of computer and internet-based data storage,  
            no information is exempt or unattractive to those wanting to  
            breach our privacy and pry into our personal lives.  Consumers  
            need the assurance that their data is being stored at robust  
            standards that are as flexible and timely as the changing  
            technology landscape.

           2.Fundamental Right to Privacy
           
          The right to privacy is a fundamental right protected by article  
          I, section 1 of the California Constitution.  The Legislature  
          has expressly declared that "all individuals have a right of  
          privacy in information pertaining to them," and has found that: 

            (1) The right to privacy is being threatened by the  
            indiscriminate collection, maintenance, and dissemination of  
            personal information and the lack of effective laws and legal  
            remedies.

             (2) The increasing use of computers and other sophisticated  
            information technology has greatly magnified the potential  
            risk to individual privacy that can occur from the maintenance  
            of personal information.

             (3) In order to protect the privacy of individuals, it is  
            necessary that the maintenance and dissemination of personal  
            information be subject to strict limits. (Civ. Code Sec.  
            1798.1.)  

          This bill builds upon the fundamental right to privacy by  
          expanding the scope of personal information required to be kept  
          reasonably secure under existing law.  The Civil Code imposes a  
          general obligation on all businesses "to implement and maintain  








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          reasonable security procedures and practices."  (Civ. Code Sec.  
          1798.81.5(b).)  Already, businesses must reasonably protect  
          California residents' social security numbers, driver's license  
          or California ID card numbers, financial account numbers, and  
          medical information from unauthorized access and use.  This bill  
          would add, among other things, tax identification numbers,  
          passport numbers, other unique government-issued identification  
          numbers, geophysical location information, biometric  
          information, and signatures to the list of protected "personal  
          information."

          As authentication technologies move beyond usernames and  
          passwords, the use of biometric information and signatures to  
          secure sensitive accounts and computer systems is likely to  
          grow, making it an attractive target for hackers.  Personal  
          information like tax identification numbers, passport numbers,  
          and other government-issued ID numbers, may be used by some to  
          commit identity theft.  And locational information, particularly  
          that which covers a long time period, could be used to learn a  
          great deal of sensitive information about a person.  As the U.S.  
          Supreme Court recently noted, this sort of information could  
          enable one to "ascertain, more or less at will, [the] political  
          and religious beliefs, sexual habits, and so on" of an  
          individual.  (United States v. Jones (2012) 132 S. Ct. 945,  
          955-956 [internal citations and quotation marks omitted].)   
          Adding these additional classes of data to the existing list of  
          personal information subject to reasonable security protection  
          will help ensure that Californian's fundamental right to privacy  
          is protected.

           3.Improved Data Security Standards
           
          Existing law requires businesses that own, license, or maintain  
          personal information to implement and maintain reasonable  
          security procedures and practices to protect the information  
          from unauthorized access, destruction, use, modification, or  
          disclosure.  (Civ. Code Sec. 1798.81.5(b).)  This bill would  
          refine this existing duty by providing businesses with guidance  
          on what constitutes "reasonable security procedures and  
          practices."  Specifically, this bill would require businesses to  
          identify reasonably foreseeable internal and external risks to  
          the privacy and security of personal information, and to  
          establish, implement, and maintain safeguards reasonably  
          designed to ensure the security of that information, as soon as  
          such information is acquired.  More importantly, this bill would  








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          place a continuing duty on businesses to regularly assess the  
          sufficiency of the safeguards in place to control reasonably  
          foreseeable internal and external risks, to evaluate and adjust  
          those safeguards in light of the assessment, and to evaluate and  
          adjust any material changes in the operations or business  
          arrangements of the business that create a material impact on  
          the privacy or security of personal information under its  
          control.

          As the recent data breach at the Office of Personnel Management  
          made clear,<1> even state-of-the-art data security systems must  
          continually assess their vulnerability to unauthorized  
          penetration and intrusion, especially when faced with persistent  
          threats.  This bill would require businesses that own, license,  
          or maintain personal information about California residents to  
          regularly evaluate the security procedures and practices they  
          use to protect that information in light of reasonably  
          foreseeable threats.  This continuing obligation would bring  
          California's business security standard more in-line with the  
          standard required of state agencies, which requires agencies to  
          establish appropriate and reasonable administrative, technical,  
          and physical safeguards to ensure the security and  
          confidentiality of records, and to protect against anticipated  
          threats or hazards to their security or integrity which could  
          result in injury.  (Civ. Code Sec. 1798.21.)

           4.Evaluating "Reasonableness"
           
          This bill, like existing law, requires businesses to implement  
          security procedures and practices that are "reasonable" in  
          nature.  This bill would provide guidelines to help businesses  
          determine what security measures are reasonable by stating that  
          the reasonableness of security procedures and practices shall be  
          determined in light of the following:
           the type of personal information under the business's control;
           the foreseeability of threats to the security of the  
            information;
          ---------------------------
          <1> Last month, the Office of Personnel Management suffered a  
          massive data breach that revealed the personal information of an  
          estimated 4 to 18 million federal workers, including many with  
          secret-level security clearances.  (See Adam Elkus, The  
          Devastating Breach of US Government Data Highlights an Illusory  
          Cybersecurity Paradox, Business Insider (Jun. 18, 2015)  
           [as of Jun. 23, 2015].)








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           the existence of widely accepted practices in administrative,  
            technical, and physical safeguards for protecting personal  
            information, and
           the cost of implementing and regularly reviewing the  
            safeguards.

          These guidelines should assist businesses as they decide where  
          investments in information technology security should be made.

          An earlier version of this bill used the "degree of the privacy  
          risk" as one of the benchmarks for determining the  
          reasonableness of a business' security practices and procedures.  
           The use of the phrase "privacy risk" in that benchmark could  
          have potentially mislead businesses into evaluating security  
          standards in light of whether harm would result from the breach  
          of personal information under its control.  Unlike other states,  
          California's data breach and data protection statutes are not  
          triggered upon a showing of harm.  Rather, harm is presumed to  
          occur when protected information is compromised.  To ensure that  
          this bill did not unintentionally incorporate a showing of harm  
          into California's data protection statutes, the author amended  
          the bill on June 25, 2015, to provide that the reasonableness of  
          security procedures and practices should be viewed instead in  
          light of the nature of the information under the business's  
          control.  This alternate standard recognizes that some  
          additional security measures may be needed to protect data that  
          is more valuable to a hacker or data thief, not because of the  
          privacy risk resulting from its loss in a breach, but because  
          the thief can receive a higher price for it in the underground  
          market for stolen information.

           1.Incorporation of Changes Proposed in AB 1541
           
          This bill amends the same section of the Civil Code as AB 1541,  
          the Assembly Privacy and Consumer Protection Committee's privacy  
          omnibus bill.  AB 1541 would add health insurance information,  
          and a username or email address combined with a password or  
          security question and answer for access to an online account, to  
                                                                                    the definition of "personal information" for which businesses  
          must implement and maintain reasonable security procedures and  
          practices.  In order to avoid the prospect of these two bills  
          chaptering one or the other out, the author decided to  
          incorporate the provisions from AB 1541 into this bill when this  
          bill was last amended.  The Senate Judiciary Committee heard AB  
          1541 on June 16, 2015, and passed it out on a vote of 7-0.  One  








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          provision from AB 1541 was unintentionally omitted in the last  
          set of amendments, and the author offers the following technical  
          amendment to incorporate that missing provision into this bill.

             Author's Amendments  :

            On page 3, line 10, insert "(v) Health insurance information."

           2.Opposition Concerns
             
          A coalition of business and industry groups, in opposition,  
          states that this bill will create unnecessary and costly  
          obligations and increased litigation exposure by requiring  
          businesses to develop and maintain heightened security  
          procedures for many types of data that do not pose a risk to  
          consumers.  Summarizing these concerns, the California Chamber  
          of Commerce states:

            The current California data security statute requires  
            businesses to "implement and maintain reasonable security  
            procedures and practices" in order to protect a consumer's  
            personal information from unauthorized access, destruction,  
            use, modification, or disclosure."   This statute is designed  
            to protect highly sensitive personal data maintained by  
            businesses including social security numbers, health  
            information and financial account information.   AB 83  
            significantly broadens the scope of the definition of  
            "personal information" under this statute, thereby requiring  
            businesses to expand security resources and face increased  
            litigation risk for data that has not been included in other  
            state or federal data security proposals and is not sensitive  
            for consumers.

          As an example, the California Chamber of Commerce makes the  
          following observation:

            AB 83 . . . adds "geophysical location information" to the  
            definition of personal information and creates a new, vague  
            and overbroad definition for this term.  The definition for  
            geolocation information is overly expansive - it could include  
            general geolocation information such as a zip code or an area  
            code as opposed to the precise location of an individual.  The  
            revelation of general geolocation information creates little  
            potential harm to a consumer.  The definition is also  
            problematic because it would add a home address within the  








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            personal information definition even though this information  
            is commonly made public for a variety of legitimate reasons  
            from mailing labels to telephone directories.  Further, this  
            definition also lacks clarity regarding whether it would apply  
            to real time geolocation information or only location  
            information which is stored or logged.

          The coalition in opposition raises similar concerns with the  
          addition of signatures and unique government-issued  
          identification numbers to California's data protection statute,  
          and notes that the statute would not apply to government  
          entities which, like private businesses, suffer security  
          breaches.
           Support  :  California Credit Union League; Privacy Rights  
          Clearinghouse; Utility Reform Network

           Opposition  :  California Chamber of Commerce; California Grocers  
          Association; California Retailers Association; CTIA - The  
          Wireless Association; Direct Marketing Association; TechNet

                                        HISTORY
          
           Source  :  Author

           Related Pending Legislation  :  AB 1541 (Committee on Privacy and  
          Consumer Protection, 2015) would add health insurance  
          information, as defined, and a username or email address  
          combined with a password or security question and answer for  
          access to an online account, to the definition of "personal  
          information" for which businesses must implement and maintain  
          reasonable security procedures and practices to protect the  
          information from unauthorized access, destruction, use,  
          modification, or disclosure.  This bill is pending on the Senate  
          Floor.

           Prior Legislation  :

          AB 1710 (Dickinson, Ch. 855, Stats. 2014) amended California's  
          Data Breach Notification Law to require a person or business to  
          offer appropriate identity theft prevention and mitigation  
          services to an affected person at no cost for not less than 12  
          months if the person or business was the source of a data  
          breach.  This bill also prohibited the sale, advertisement for  
          sale, or offer to sell an individual's social security number.









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          AB 1950 (Wiggins, Ch. 877, Stats. 2004) required a business that  
          owns or licenses personal information about a California  
          resident to implement and maintain reasonable security  
          procedures and practices to protect personal information from  
          unauthorized access, destruction, use, modification, or  
          disclosure.  AB 1950 also required a business that discloses  
          personal information to a nonaffiliated third party to require  
          by contract that those entities maintain reasonable security  
          procedures.

           Prior Vote :

          Assembly Floor (Ayes 66, Noes 4)
          Assembly Privacy and Consumer Protection Committee (Ayes 9, Noes  
          1)

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