BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 259


                                                                    Page  1


          Date of Hearing:  March 17, 2015


                ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION


                                    Gatto, Chair


          AB  
                    259 (Dababneh) - As Introduced  February 9, 2015


          SUBJECT:  Personal information:  privacy


          SUMMARY:  Requires a public agency that is the source of a data  
          breach to offer at least 12 months of identity theft prevention  
          and mitigation services at no cost to affected consumers.   
          Specifically, this bill:   


          1)Requires a public agency that is the source of a data breach  
            and is required to provide affected persons with notice of the  
            breach to provide at least 12 months of appropriate identity  
            theft prevention and mitigation services at no cost to the  
            affected persons.

          2)Requires a public agency to give affected persons all  
            information necessary to take advantage of the offer for  
            identity theft prevention and mitigation services.





          3)Requires a public agency to offer identity theft prevention  
            and mitigation services only if the breach exposed, or may  
            have exposed, a person's name in combination with a Social  
            Security number or a driver's license number.

          4)Requires a public agency that delays the specified  








                                                                     AB 259


                                                                    Page  2


            notification at the direction of law enforcement to make the  
            notification promptly after a law enforcement agency  
            determines that notification will not compromise any criminal  
            investigation. 



          5)Makes other technical and nonsubstantive amendments.


          EXISTING LAW:  


          1)Requires a public agency, person, or business that owns or  
            licenses computerized data that includes personal information  
            to notify any California resident whose unencrypted personal  
            information was acquired, or reasonably believed to have been  
            acquired, by an unauthorized person.  The notice must be made  
            in the most expedient time possible and without unreasonable  
            delay, consistent with the legitimate needs of law  
            enforcement, as specified.  Note that this requirement does  
            not apply to the Judiciary, the Legislature, or the University  
            of California.  (Civil Code (Civ. Code) Sections 1798.29(a),  
            (c); 1798.82(a), (c))

          2)Requires a person or business that is the source of a breach  
            of Social Security numbers or driver's license numbers, and is  
            required to provide notice of the breach, to offer an identity  
            theft protection or mitigation service to affected individuals  
            at no cost, for no less than 12 months.  (Civ. Code 1798.82  
            (d)(2)(G))



          3)Requires a public agency, person, or business that maintains  
            computerized data that includes personal information that the  
            agency, person, or business does not own to notify the owner  
            or licensee of the information of any security breach  
            immediately following discovery if the personal information  
            was, or is reasonably believed to have been, acquired by an  
            unauthorized person.  (Civ. Code 1798.29(b), 1798.82(b))









                                                                     AB 259


                                                                    Page  3




          4)Defines "personal information," for purposes of the breach  
            notification statute, to include the individual's first name  
            or first initial and last name in combination with one or more  
            of the following data elements, when either the name or the  
            data elements are not encrypted: 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; medical information; or health insurance information.  
             "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 1798.29(g), (h), 1798.82(h), (i))


          FISCAL EFFECT:  Unknown


          COMMENTS:  


           1)Purpose of this bill  . This bill is intended to provide  
            individuals affected by a state or local agency data breach  
            with at least 12 months of identity theft protection for free.  
             While existing law already requires any private business  
            responsible for a significant breach to offer at least 12  
            months of identity theft prevention mitigation services, no  
            such requirement exists for public agencies.  AB 259 would  
            extend these protections to include state and local agencies.   
            This measure is author-sponsored.   



           2)Author's statement  . According to the author's office, "Whether  
            a data breach occurs at a state agency or a business, the same  
            standards should be in place to protect consumers  A breach  
            resulting in the release of Social Security or driver license  
            numbers can lead to identity theft, forcing consumers to  
            monitor their personal information for years to come."








                                                                     AB 259


                                                                    Page  4





           3)Recent data breaches  . More than 80 million people in the  
            United States were impacted by the February 2015 data breach  
            at health insurer Anthem.  Information stolen in the breach  
            included current and former customers' names, birth dates,  
            medical identification numbers, Social Security numbers, home  
            addresses, email addresses, and employment and income data.  

          In fact, the Anthem breach was just the latest in a string of  
            high profile data breaches; 
          2014 was a record-setting year in terms of the number of  
            security breaches reported.  According to a January 2015  
            report by the California Attorney General's Office, 187  
            breaches were reported to the California Department of Justice  
            in 2014, compared to 167 in 2013 and 131 in 2012.  According  
            to a national database of breaches maintained by the Privacy  
            Rights Clearinghouse, more than 815 million records have been  
            compromised in more than 4,489 publicly acknowledged data  
            breaches since 2005.  

          Unfortunately, state and local agencies are not immune to data  
            breaches.  During 2012-2014, the following California public  
            agencies reported breaches: California State University,  
            Department of Corrections and Rehabilitation, Department of  
            Public Health, Department of State Hospitals, Correctional  
            Health Care Services, Department of Social Services,  
            Department of Justice, Department of Child Support Services,  
            Employment Development Department, and the Department of Motor  
            Vehicles.   

           4)California's Data Breach Notification Law  .  In 2003,  
            California became the first state in the nation to require  
            businesses and government agencies to notify California  
            residents of security breaches if unencrypted personal  
            information was, or was reasonably believed to have been,  
            stolen. (SB 1936 (Peace), Chapter 915, Statutes of 2002)












                                                                     AB 259


                                                                    Page  5



            The notification law does not apply to "encrypted"  
            information, which creates an incentive for businesses and  
            government agencies to encrypt personal data and thereby avoid  
            the notice requirement.  Also, notice is not required unless  
            the data breach involved "personal information" relating to a  
            California resident.  "Personal information" means a person's  
            first name or first initial and last name in combination with  
            one or more of the following data elements:  

                  a)        Social Security number; 
                  b)        Driver's license number or California  
                    identification card number; 


                  c)        Account number, credit or debit card number,  
                    in combination with any required security code, access  
                    code, or password; 


                  d)        Medical information; health insurance  
                    information; or 


                  e)        A user name or email address in combination  
                    with a password or security question and answer that  
                    would permit access to an online account.

            "Personal information" does not include publicly available  
            information that is lawfully made available to the general  
            public from federal, state, or local government records.

            The Data Breach Notification Law has two distinct parts: one  
            part that applies to state and local agencies, which is  
            located in the Information Practices Act of 1977 (Civ Code  
            1798.29), and one part that applies to businesses (Civ. Code  
            1798.82).  Both parts began as mirror images of each other.   
            Over the years, however, as the Legislature has refined and  
            updated the Data Breach Notification Law, the language of the  
            two parts has not always been kept consistent.  

            Most recently, the Legislature passed and the Governor signed  








                                                                     AB 259


                                                                    Page  6


            AB 1710 (Dickinson), which required an affected business to  
            offer appropriate identity theft prevention and mitigation  
            services for at least 12 months at no cost to people affected  
            by the breach, in cases where a breach involved Social  
            Security or driver's license numbers.  AB 259 would extend  
            these same protections to persons affected by a state or local  
            agency data breach. 

           5)The benefits of identity theft prevention and mitigation  
            services  .  According to the author, the term "identity theft  
            prevention and mitigation services" includes credit report  
            monitoring services, which help prevent fraud and identity  
            theft by giving consumers ongoing information about credit  
            card account balance increases and new loans and credit cards  
            opened in the consumer's name.  Identity theft prevention and  
            mitigation services may also include security freeze services  
            offered by credit reporting agencies, which stop identity  
            thieves from opening up new accounts in a victim's name by  
            "freezing" the victim's credit report, so that lending  
            institutions cannot check a credit report or credit score to  
            approve new loans or credit cards.    



           6)Questions about the "if any," clause  .  There has been some  
            discussion within the legal community as to whether or not the  
            phrasing of the existing statute as it applies to businesses -  
            which is mirrored in this bill for public agencies - is open  
            to more than one interpretation.   As passed by the  
            Legislature and signed by the Governor, AB 1710 (Dickinson),  
            requires a business that issues a breach notification to offer  
            "appropriate identity theft prevention and mitigation  
            services, if any" to affected individuals at no cost.   
            However, the question has been raised as to whether or not the  
            offer of services itself is required or discretionary.  



          Read plainly, the "if any" clause (Civ Code 1798.29 (d)(2)(G))  
            would presumably modify the preceding phrase "appropriate  
            identity theft prevention and mitigation services" - i.e., if  
            there are no prevention or mitigation services that are  








                                                                     AB 259


                                                                    Page  7


            appropriate for a consumer after a particular breach, then the  
            business is not required to offer services.  For example, a  
            retail breach involving the theft of credit card numbers might  
            be appropriately mitigated by re-issuing cards with new card  
            numbers rather than setting up credit reporting monitoring  
            services for a year, since theft of a credit card number is  
            not enough information for criminals to open up new accounts  
            in the cardholder's name.  However, the presumption is in  
            favor of the provision of services unless it is obvious that  
            no service is appropriate. 

          Conversely, the law firm Morrison & Foerster suggested in an  
            online Client Alert on October 9, 2014, that the "if any"  
            clause could be interpreted to modify the "offer" of services  
            itself to make it voluntary.  Under this reading, a business  
            would simply be permitted by statute - not required - to offer  
            identity theft prevention and mitigation services after a  
            breach. 

          The question is pertinent to this bill because AB 259's language  
            mirrors the existing language in question from AB 1710 in  
            applying the requirement to public agencies.  While perhaps it  
            would be ideal to clarify the matter in statute, the author's  
            office has stated to Committee staff that it is the intent of  
            this bill to require - not simply authorize - public agencies  
            to provide affected consumers with identity theft prevention  
            and mitigation services for a minimum of 12 months.
             


            The author's stated intent would appear to be in line with the  
            intent of AB 1710 (Dickinson) as well.  The June 24, 2014,  
            Senate Judiciary Committee analysis of AB 1710 (Dickinson)  
            describes that bill as imposing a requirement, not a  
            discretionary authorization:  "This bill would also require  
            the person or business providing notification that was the  
            source of the breach to provide to affected consumers with  
            identity theft prevention and mitigation services for a  
            minimum of 12 months."  











                                                                     AB 259


                                                                    Page  8


            As such, it is the understanding of Committee staff that the  
            language of this bill requires an offer of identity theft  
            prevention and mitigation services, except in those cases  
            where no such service would be appropriate. 



           7)Arguments in support  .  According to the California School  
            Employees Association: "Once you are a victim of identity  
            theft, it is very difficult to resolve these issues and quite  
            costly and time consuming.  AB 259 is an important step in  
            helping the victims of identity theft to repair their credit  
            and get their financial lives back in order."
           


          8)Related legislation  . SB 34 (Hill) amends the Data Breach  
            Notification Law to add to the definition of "personal  
            information" any information or data collected through the use  
            or operation of an automated license plate recognition system.  
             SB 34 is currently pending in the Senate Transportation and  
            Housing Committee.  
           


          9)Prior Legislation  .  AB 1710 (Dickinson and Wieckowski),  
            Chapter 855, Statutes of 2014, required a person or business  
            that is the source of a breach of Social Security numbers or  
            driver's license numbers to offer an identity theft protection  
            or mitigation service to affected individuals at no cost, for  
            no less than 12 months. It expands the information security  
            law to require businesses that maintain, own or license the  
            personal information of California residents to use reasonable  
            and appropriate security measures to protect the information.   
            It also prohibits the sale or marketing of Social Security  
            numbers, with certain exceptions.  
            SB 46 (Corbett), Chapter 396, Statutes of 2013, revised  
            certain data elements included within the definition of  
            personal information under California's Data Breach  
            Notification Law, by adding certain information that would  
            permit access to an online account and imposed additional  
            requirements on the disclosure of a breach of the security of  








                                                                     AB 259


                                                                    Page  9


            the system or data in situations where the breach involves  
            personal information that would permit access to an online or  
            email account.


            SB 24 (Simitian), Chapter 197, Statutes of 2011, required any  
            agency, person, or business that is required to issue a  
            security breach notification pursuant to existing law to  
            fulfill certain additional requirements pertaining to the  
            security breach notification, and required any agency, person,  
            or business that is required to issue a security breach  
            notification to more than 500 California residents to  
            electronically submit a single sample copy of that security  
            breach notification to the Attorney General.


            AB 1298 (Jones), Chapter 699, Statutes of 2007, among other  
            things, added medical information and health insurance  
            information to the data elements that, when combined with the  
            individual's name, would constitute personal information  
            requiring disclosure when acquired, or believed to be  
            acquired, by an unauthorized person due to a security breach.


            AB 1950 (Wiggins),Chapter 877, Statutes of 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.


            SB 1936 (Peace), Chapter 915, Statutes of 2002, enacted  
            California's Data Breach Notification Law and required a  
            public agency, or a person or business that conducts business  
            in California, that owns or licenses computerized data that  
            includes personal information to disclose any breach of the  
            security of the data to California's residents whose  
            unencrypted personal information was, or is reasonably  








                                                                     AB 259


                                                                    Page  10


            believed to have been, acquired by an unauthorized person.  SB  
            1936 permitted notifications to be delayed if a law  
            enforcement agency determines that it would impede a criminal  
            investigation, and required an agency, person, or business  
            that maintains computerized data that includes personal  
            information owned by another to notify the owner or licensee  
            of the information of any breach of security of the data.


          REGISTERED SUPPORT / OPPOSITION:


          Support


          Association of California Life and Health Insurance Companies
          California Bankers Association
          California Business Properties Association
          California Chamber of Commerce
          California Credit Union League
          California Grocers Association
          California Land Title Association
          California Retailers Association
          California School Employees Association
          Direct Marketing Association
          Retail Industry Leaders Association


          Opposition


          No opposition on file.


          Analysis Prepared  
          by:              Jennie Bretschneider/P. & C.P./(916) 319-2200














                                                                     AB 259


                                                                    Page  11