BILL ANALYSIS                                                                                                                                                                                                    Ó



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          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.
           








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          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. 









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             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  








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               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;











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             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.   










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           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  








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            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.  









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             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.  










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           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  








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            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. 












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            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  








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            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  








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            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.












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            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  








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            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. 








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            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. 








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           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 








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          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















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