BILL ANALYSIS Ó AB 2636 Page 1 Date of Hearing: April 19, 2016 ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION Ed Chau, Chair AB 2636 (Linder and Dababneh) - As Amended April 12, 2016 SUBJECT: Certified copies of marriage, birth, and death certificates: electronic application SUMMARY: Allows a public records 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. Specifically, this bill: 1)Authorizes the State Registrar, or a local registrar or county recorder, if a request for a certified copy of a birth, death, or marriage record is made electronically, 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 multilayered remote identity proofing process, as specified. AB 2636 Page 2 3)Requires that the method to process electronic requests and to establish the requester's identity meet all the following requirements: a) Meets or exceeds the National Institute of Standards and Technology (NIST) electronic authentication guideline for multilayered remote identity proofing; b) Verifies the following information provided by the applicant: i) A valid government-issued identification number; and ii) A financial or utility account number. The verification must occur through record checks with the state or local agency or a credit reporting agency or similar database and must confirm that the name, date of birth, address, or other personal information in such record checks are consistent with the information provided by the applicant. c) Meets or exceeds the information security requirements of the Uniform Electronic Transactions Act and the Federal Information Security Management Act and all other applicable state and federal laws and regulations to protect the personal information of the applicant and guard against identity theft. AB 2636 Page 3 d) Retains, for each electronic verification as required by the NIST electronic authentication guideline, a record of the applicant who identity has been verified and the steps taken to verify the identity. 4)Provides that if a requester's identity cannot be established electronically, then the requester must accompany his or her request with a notarized statement of identity. 5)Makes other non-substantive, clarifying changes to current law. EXISTING LAW: 1)Charges the Office of Vital Records, within the California 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. (Health & Safety Code (HSC) Section 102180 et seq.) 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 AB 2636 Page 4 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." (HSC 103526) 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; 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; AB 2636 Page 5 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. (HSC 103526(c)) 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. (HSC 103526(b)) 5)Requires the certified copy to contain the statement "INFORMATIONAL, NOT A VALID DOCUMENT TO ESTABLISH IDENTITY." (HSC 103526(b)) FISCAL EFFECT: Unknown COMMENTS: 1)Purpose of this bill . This bill is intended to streamline the process for requesting official copies of birth, death and marriage certificates (vital records) by permitting county recorders and the California Office of Vital Records to accept online applications for the records and requiring an electronic identity authentication process similar to what is used in 41 other states for vital records requests. This measure is sponsored by the California State Association of Counties and the Urban Counties of California. AB 2636 Page 6 2)Author's statement . According to the author's office, "Individuals seeking vital records in California suffer longer wait times and pay significantly higher fees than individuals seeking records in almost every other state due to outdated statutes that govern vital records requesting policies in California. Recognizing the advanced security capabilities of remote verification technologies, vital records agencies-with the exception of those in California and Minnesota-have moved away from reliance solely on notarized statements of identity. Accepted as a standard method of practice by the majority of vital records agencies nationwide, AB 2636 allows local jurisdictions to offer an alternative method of verification for vital records requests using remote identity proofing processes, so long as they adhere to a stringent set of federal cybersecurity guidelines. This much-needed measure will bring California's antiquated vital record request system into the 21st Century, thereby not only easing the financial burden on local jurisdictions, but also increasing the security of their processing systems." 3)What are vital records? Vital records are birth certificates, death certificates and marriage certificates, and they are kept on file in the county in which the person was born, married or died. The California Office of Vital Records has a statewide database of vital records. People need certified copies of their birth certificate when they apply for their first driver's license or passport, and it is not uncommon for birth certificates to be lost in the years between birth and adulthood. Copies of marriage certificates are needed in cases of divorce and in cases where one spouse is from another country and the AB 2636 Page 7 marriage is the basis for legal residency in the United States. Here again, when the certificate is lost a new official copy must be obtained. When a person dies, several copies of the official death certificate are typically needed in order to complete legal transactions to transfer assets to the decedents' heirs. Vital records are almost never needed for financial transactions, such as opening a bank account or getting a mortgage. However, privacy advocates argue that birth certificates are "breeder" documents, because identity thieves can use them to get other identity documents, such as a driver's license or passport, in their victim's name. 4)California's "tangible interest" law for vital records. California, like 41 other states, has a "tangible interest" law, which requires that only unofficial, non-certified copies of vital records may be released unless the person swears under penalty of perjury that they are a family member or another person with a "tangible interest" in obtaining an official, certified copy of the birth, death or marriage certificate. In California, some counties have an online application to request a vital record, but all counties must require applicants to follow up with a paper form signed in ink and notarized, in which the applicant swears under penalty of perjury that he or she has a right to a certified copy of the record. This notarized form can be faxed or mailed to the county recorder. AB 2636 Page 8 However, the processing time in California for obtaining an official vital record is typically very slow. According to one of the bill's sponsors, Urban Counties of California, counties process thousands of vital records requests, which can be very time consuming for county staff and costly for county government. This bill would allow counties to use an electronic process to receive a vital records application. The new process would require identity verification against a government database or a person's credit record, and would still require applicants to swear under penalty of perjury they have a right to a certified copy of the record. The electronic process under this bill would be somewhat similar to the process California now uses to allow people to register to vote online. The Secretary of State's online voter registration website requires applicants to affirm under penalty of perjury that they are a citizen of the United States by clicking a button on the online voter registration application. The SOS then checks the applicant's driver's license number against the Department of Motor Vehicles database to verify the person's identity. If the person's identity cannot be confirmed then the applicant must mail in a signed paper voter registration application. AB 2636 Page 9 5)The NIST standard . NIST is responsible for developing information security standards for federal information systems. NIST's electronic authentication guidelines provide standards for remote authentication of users interacting with government IT systems over open networks. It also defines the technical requirements for each level of assurance for remote identity proofing. Under this bill, the electronic verification accepted by a California official would have to be in compliance with each update of the NIST guidelines to ensure that the most up to date security standards for electronic authentication. Under the current NIST guideline, e-authentication credentials may be considered the electronic analog of paper credentials. That is, the remote verification process must meet the same level of confidence in verifying an individual's identity as an affidavit of identity provided by a notary. In both cases of a paper credential such as an affidavit of identity, or the electronic credential provided by identity proofing technology, a valid credential authoritatively binds an identity to the necessary information for verifying that a person is entitled to claim the identity. For the federal government's operations, an electronic verification that complies with the NIST is not a less secure verification, but rather a different mode of assuring the identity. The multilayered knowledge-based identity authentication method NIST requires for remote identity proofing is as follows. The NIST guidelines require that an applicant supply his or her full legal name, an address of record, date or birth and any other information requested by the agency before any additional identity proofing methods are employed. The AB 2636 Page 10 sensitive data collected during the registration and identity proofing stage must be protected by the agency at all times including in transmission and storage to ensure their security and confidentiality of data. Next the agency must verify the personal data provided by checking the data against a government database or the applicant's credit report, or perhaps a specialty consumer credit report such as one containing consumer utility service accounts. Once the agency has determined that the identity exists and is not a fabricated identity, the agency then asks the applicant a series of questions, which are designed to test whether the applicant is in fact the person they claimed to be on the application. This is called "knowledge-based authentication" or KBA, and involves multiple-choice questions that ask the user about his or her past residences and credit history. The questions range from "On which of the following streets have you lived?" to "What is your total scheduled monthly mortgage payment?" This bill requires all of these layers of authentication required by NIST in addition to other protections. The author also notes that the NIST standard is not only used by the agencies that process vital records requests in 41 other but also by thousands of other state, local, and federal government agencies as well as financial institutions and health care organizations, which hold sensitive medical and financial information. For example, CalSTRS currently authenticates identity using KBA to allow access to online retirement account information and the California State Controller's Office uses KBA to authenticate identity for applications to recover unclaimed property. AB 2636 Page 11 Bruce Schneier, Chief Technology Officer of Resilient Systems and a fellow at Harvard's Berkman Center, has stated that visual verifications of identification documents (such as when a notary public looks at a driver's license) are no more than "security theatre" as they make the public feel secure, but actually don't provide a true security benefit. In June 2012, Schneier stated that "the only real solution is to move the security model from the document to the database. With online verification, the document matters much less, because it is nothing more than a pointer into a database." 6)Modernization in other states . Forty-one other states have already moved away from paper-based vital records requests. Another six states have open records laws that allow anyone to get an official copy of a vital record, so no identity verification is required. Taken together, only California and Minnesota still have a paper-based application process that requires a notarized signature to obtain an official copy of a birth, death or marriage certificate. For example, in Massachusetts, which like California has a tangible interest law, the online application begins with the applicant entering name, date of birth, address, social security number, and other information. Each applicant must submit a credit card for payment and the name on the credit card must match the name of the applicant. The applicant must then select "I acknowledge" to affirm that they understand that the law restricts access to family members and certain others and that violation of the law is a crime. Next, the agency verifies the applicant's information and government-issued identification against its database to verify the identity of the individual. Then the applicant is guided through a series of questions, based on information from other sources such as the applicant's credit report. If AB 2636 Page 12 the applicant passes the quiz, the credit card payment is processed and the application is electronically submitted to the agency for processing. If the applicant fails at any point in the multilayered authentication process, then the applicant must instead submit a signed, notarized paper application. Massachusetts follows the NIST guidelines which are required in this bill. 7)The IRS hack and KBA . In May 2015, the IRS announced a major data breach in which hackers successfully applied for and received tax refunds for hundreds of thousands of taxpayers. According to recent reports, nearly 700,000 people were affected. Hackers used the IRS's "Get Transcript" website to steal data from previously filed tax returns and then used that information to file the new, falsified returns. Privacy advocates have pointed out that the IRS hackers found a way to bypass the two-step process on the IRS's "Get Transcript" website. In the first step, a user has to provide a Social Security number, date of birth, tax filing status, and street address, according to the IRS. The second step is a KBA quiz that hackers found a way to defeat by guessing the correct answers on thousands of taxpayers. This gave the hackers access to prior returns and enough information to file falsified new returns generating refunds. According to news reports, $50 million in tax refunds were issued and sent by the IRS to a single bank account in Pennsylvania. From there funds were wired to Nigeria and other places. Unlike the IRS hack in which millions were paid into a single bank account, this bill as amended would require additional security features beyond what NIST requires, including a requirement that the name on the applicant's credit card must match the name of the applicant, so that a hacker cannot AB 2636 Page 13 submit thousands of requests using a single credit card. 8)Recent amendments strengthen the bill . The author and stakeholders worked with the Committee to add a number of additional privacy and security protections to the bill, including the following: a) A county that chooses to move to electronic requests for vital records must establish a system that meets or exceeds the NIST electronic authentication guideline for multilayered remote identity proofing, as detailed above. b) The electronic request system must verify both a valid government-issued identification number and a financial or utility account number. The verification must be conducted by running a match against a state or local agency database or a credit reporting agency or similar database. The verification must confirm that the name, date of birth, address, and other personal information is consistent with the information on the application. c) The electronic request must or exceeds the information security requirements of the Uniform Electronic Transactions Act and the Federal Information Security Management Act, which require data security risk assessment, risk management and auditing measures to guard against data breach and identity theft. d) The county must retain records from each electronic verification, as required by the NIST, including the steps taken to verify the applicant's identity. AB 2636 Page 14 The added protections are designed to help reduce the likelihood of fraud and identity theft in the online application process. 9)County option . This bill does not eliminate the paper process in place to apply for an official vital record in California. In fact, the bill provides counties the option of moving to an electronic application system in addition to using the existing paper-based system. Anyone failing the electronic authentication would be required to apply on paper and provide a notarized signature. 10)Arguments in support . The Urban Counties of California (UCC) states in support of this bill that "counties process thousands of these 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 for these vital records." UCC states further that the bill "is permissive and is not a mandate which would allow each county to decide whether to make this change. In addition, this bill provides critical consumer protections for privacy by requiring systems that are consistent with federal guidelines which are the most stringent in the country." In its letter of support for the bill, the Little Hoover Commission states, "In its 2015 report, A Customer-Centric Upgrade for California Government, the Commission urged state leaders to upgrade and improve state government by sharply focusing on customer needs. The Commission found that, for various reasons, the state does not always make it easy or AB 2636 Page 15 convenient for Californians to get the government services they are entitled to and deserve. The Commission's report identified opportunities for improved customer experience across state government, including its vital records program. Certified copies of vital records, such as birth, death and marriage certificates, are critical for Californians who want to enroll their children in school or a youth sports program, apply for a driver's license or a passport, update their Social Security card to reflect their new married name, or even help settle the affairs of a deceased loved one. While the need for copies of these records is often urgent, the Commission found that the process to obtain them can be overly complicated, time consuming and paper-intensive. To make it easier for Californians to apply for and receive copies of these records, the Commission suggested the state move the application and payment processes online and evaluate whether a notary check is necessary." 11)Arguments in opposition . Privacy Rights Clearinghouse opposes this bill on the grounds that "the 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. Certified copies of birth certificates can be used to fraudulently obtain many other important documents such as passports, driver's licenses, and identification cards." 12)Prior Legislation . AB 1238 (Linder) of 2015, was similar to this bill and was held on the Assembly Appropriations Committee suspense file. AB 2275 (Ridley-Thomas) of 2014 was identical to this bill and failed passage in the Senate Judiciary Committee. AB 2636 Page 16 AB 464 (Daly), Chapter 78, Statutes of 2013, allowed digitized images, as defined, to be included as part of a request for a certified copy of a birth, death, or marriage record. AB 130 (Jeffries), Chapter 412, Statutes of 2009, extended 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. 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. AB 247 (Speier), Chapter 914, Statutes of 2002, authorized 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. AB 2636 Page 17 13)Double-referral : This bill was double-referred to the Assembly Health Committee where it passed 19-0 on March 29, 2016. REGISTERED SUPPORT / OPPOSITION: Support California State Association of Counties (CSAC) (co-sponsor) Urban Counties of California (UCC) (co-sponsor) California Association of Clerks and Election Officials California Association of County Veteran Service Officers Computing Technology Industry Association (CompTIA) County Health Executives Association of California (CHEAC) Little Hoover Commission Los Angeles County AB 2636 Page 18 TechNet Riverside County Tarrant County Clerk's Office San Bernardino County Rural County Representatives of California (RCRC) Opposition ACLU of California Privacy Rights Clearinghouse Analysis Prepared by:Jennie Bretschneider / P. & C.P. / (916) 319-2200 AB 2636 Page 19