BILL ANALYSIS Ó AB 2636 Page 1 Date of Hearing: March 29, 2016 ASSEMBLY COMMITTEE ON HEALTH Jim Wood, Chair AB 2636 Linder - As Amended March 16, 2016 SUBJECT: Certified copies of marriage, birth, and death certificates: electronic application. SUMMARY: Allows an official, if an electronic request for a certified copy of a birth, death, or marriage record is made, to accept an electronic acknowledgment verifying the identity of the requester using a remote identity proofing process to ensure the requester is an authorized person, as specified. Specifically, this bill: 1)Authorizes the State Registrar, or a local registrar or county recorder to accept electronic acknowledgement, sworn under penalty of perjury, that the requester of a marriage, birth, or death certificate is an authorized person. 2)Requires the electronic request for vital records to utilize a method for the official to establish the identity of the requester using a remote identity proofing process, as specified. 3)Requires that the method to process electronic requests and to establish the requester's identity meet all the following AB 2636 Page 2 requirements: a) Be aligned with federal guidelines for security and privacy; b) Include, at minimum, dynamic knowledge-based authentication or an identity proofing method consistent with the electronic authentication guidelines of the National Institute of Standards and Technology (NIST); c) Comply with the provisions of the California Uniform Electronic Transactions Act; and, d) Comply with all other applicable state and federal laws and regulations to protect the personal information of the requester and guard against identity theft. 4)Provides that if a requester's identity cannot be established electronically pursuant to 3) above, the requester may accompany his or her request with a notarized statement of identity. EXISTING LAW: 1)Charges the Office of Vital Records, within the California AB 2636 Page 3 Department of Public Health, with the responsibility of maintaining a uniform system for registration and a permanent central registry with a comprehensive and continuous index for all birth, death, fetal death, marriage, and dissolution certificates registered for vital events which occur in California. 2)Allows the State Registrar, local registrar, or county recorder to furnish a certified copy of birth, death, or marriage to applicants upon request if: a) The request is written, faxed, or a digitized image and accompanied by a notarized statement that is written, faxed, or a digitized image, sworn under penalty of perjury, that the requester is an authorized person, as defined; or, b) The request is made in person, and the official takes a statement, sworn under penalty of perjury, that the requester is signing his or her own legal name and is an "authorized person." 3)Defines "authorized person," for purposes of obtaining certified copies of birth, death, or marriage records, as any of the following: a) The person who is the subject of the record or the parent or legal guardian of that person; b) A party who is entitled to receive the record as a result of a court order; AB 2636 Page 4 c) Law enforcement or governmental agency personnel conducting official business; d) A child, grandchild, sibling, spouse, domestic partner, or grandparent of the person who is the subject of the record; e) An attorney or other person empowered to act on behalf of the person who is the subject of the record; or, f) An agent or employee of a funeral establishment who orders death certificates when acting on behalf of specified individuals. 4)Provides that, in all other cases in which the requester does not meet the requirements of an authorized person, a certified copy may be provided to the requester but the document shall be an informational certified copy and shall be redacted to remove any signatures that appear on the document. Requires the certified copy to contain the statement "INFORMATIONAL, NOT A VALID DOCUMENT TO ESTABLISH IDENTITY." FISCAL EFFECT: This bill has not been analyzed by a fiscal committee. COMMENTS: AB 2636 Page 5 1)PURPOSE OF THIS BILL. According to the author, individuals seeking vital records in California suffer longer wait times and pay significantly higher fees than individuals seeking records in most other states due to outdated statutes that govern vital records request policies. The author states that county and local staff are significantly burdened by current policies that dictate that a vital records request may only be partially competed online, followed by a notarized affidavit submitted on paper. This hybrid system of online requesting means, practically, that a vital records request cannot be processed without countless of hours of county staff time wasted because staff must manually attach related documents for each individual request as supporting documentation is submitted. The author further asserts that California's policies are drastically out of step with national trends to increase access to vital government services through online technologies, as 34 other states and 171 local jurisdictions allow for digital authentication of vital records requests online as a standard matter of practice. 2)BACKGROUND. The Office of Vital Records is charged with the responsibility of maintaining a uniform system for registration and a permanent central registry with a comprehensive and continuous index for all birth, death, fetal death, marriage, and dissolution certificates registered for vital events which occur in California. Certified copies of these records are available from the State Registrar, the 58 county recorders, and 61 local health jurisdictions. 3)ELECTRONIC AUTHENTICATION GUIDELINES. Electronic authentication (e-authentication) is the process of establishing confidence in user identities electronically presented to an information system. E-authentication presents a technical challenge when this process involves the remote authentication of individual people over an open network (i.e. AB 2636 Page 6 the internet), for the purpose of electronic government and commerce. The NIST, under the U.S. Department of Commerce, released guidelines in 2013 to provide technical guidance to agencies to allow an individual to remotely authenticate his or her identity to a federal IT system. These guidelines address only traditional, widely implemented methods for remote authentication based on secrets. With these methods, the individual whose identity is authenticated proves that he or she knows or possesses some secret information. 4)EXECUTIVE ORDER ON SECURING CONSUMER DATA ONLINE. In response to several high profile consumer data breaches, potentially leading to credit card fraud and identity crimes, President Obama issued an executive order on October 17, 2014, aimed at improving the security of consumer financial transactions. The Executive Order states that "given that identity crimes, including credit, debit, and other payment card fraud, continue to be a risk to U.S. economic activity, and given the economic consequences of data breaches, the United States must take further action to enhance the security of data in the financial marketplace. While the U.S. Government's credit, debit, and other payment card programs already include protections against fraud, the Government must further strengthen the security of consumer data and encourage the adoption of enhanced safeguards nationwide in a manner that protects privacy and confidentiality while maintaining an efficient and innovative financial system." In part, the order directed the National Security Council staff, the Office of Science and Technology Policy, and Office of Management and Budget to present to the President by March, 2016 a plan to ensure that all agencies making personal data accessible to citizens through digital applications require the use of multiple factors of authentication and an effective identity proofing process, as appropriate. 5)SUPPORT. The Urban Counties Caucus, cosponsor of this bill, writes in support that counties process thousands of these AB 2636 Page 7 types of requests which can be very time consuming for both county staff and consumers. This bill would provide a more user-friendly way to get access to these records through established systems that verify the user's identity which could provide significant cost savings to counties and provide better customer service. The California State Association of Counties, cosponsor of the bill, states that updating vital records requests could also reduce the overall cost for consumers when obtaining vital records. The current fee for a certified copy of a birth certificate in Los Angeles County ranges from $23 to $28, and the average notary fee is an additional $20. 6)OPPOSITION. Privacy Rights Clearinghouse (PRC) opposes on the grounds that substitution of an electronic acknowledgement for a notarized affidavit will facilitate the ability of identity thieves and other fraudsters to obtain vital records that can then be used to engage in criminal acts against Californians. Vital records contain a wealth of personal information, which if inappropriately released to the wrong person can result in significant privacy violations. PRC further states that any legislation expanding the ability to obtain vital records online much have sufficient protections in place to protect Californians' sensitive personal information and prevent identity theft and other fraudulent activity. 7)PREVIOUS LEGISLATION. a) AB 1238 (Linder) of 2015, substantially similar to this bill, was held in the Assembly Appropriations Committee suspense file. b) AB 2275 (Ridley-Thomas) of 2014 was identical to this bill and failed passage in the Senate Judiciary Committee. AB 2636 Page 8 c) AB 464 (Daly), Chapter 78, Statutes of 2013, allows digitized images, as defined, to be included as part of a request for a certified copy of a birth, death, or marriage record. d) AB 130 (Jeffries), Chapter 412, Statutes of 2009, extends the existing limitations on the release and access of birth and death records to marriage records in order to prevent the unauthorized use of personal information. e) SB 471 (Margett) of 2007 would have required any individual, authorized by law to obtain a certified copy of a birth or death certificate, to show proof of identification when the request is made in person, except when the individual has been a victim of identity theft. SB 471 died in the Senate Health Committee. f) AB 247 (Speier), Chapter 914, Statutes of 2002, authorizes the State Registrar, local registrar, or county recorder to provide a certified copy of a birth or death record to an authorized person who submits a statement sworn under penalty of perjury that the requester is signing his or her own legal name and is an authorized person. 8)DOUBLE REFERRAL. This bill is double referred. Upon passage of this Committee, this bill will be referred to the Assembly Committee on Privacy and Consumer Protection. AB 2636 Page 9 9)POLICY COMMENT. Vital records contain a wealth of personal information, which if inappropriately released to the wrong person could result in a significant violation of privacy. Privacy is protected by California's Constitution, and must be protected with the highest possible standards. Certified copies of birth certificates can be used to fraudulently obtain many other important documents such as passports, driver's licenses, and identification cards. Certified copies of death certificates can be used to fraudulently obtain decedents' death benefits, including life insurance proceeds and investment accounts. Given the inherent difficulties in verifying the identity of an individual over the Internet, and the countless opportunities for identity theft that vital records in the wrong hands could create, very strong protections must be in place to ensure that vital records are safely maintained. The committee may wish to consider whether the security standards set forth in this bill are sufficient to protect against identity theft. AB 2636 Page 10 REGISTERED SUPPORT / OPPOSITION: Support California State Association of Counties (cosponsor) Urban Counties Caucus (cosponsor) California Association of Clerks and Election Officials California Association of County Veteran Service Officers Computing Technology Industry Association County Health Executives Association of California County of San Bernardino Little Hoover Commission Los Angeles County Board of Supervisors Riverside County Board of Supervisors AB 2636 Page 11 Rural County Representatives of California TechNet Opposition Privacy Rights Clearinghouse Analysis Prepared by:Dharia McGrew / HEALTH / (916) 319-2097