Amended in Senate April 22, 2015

Senate Bill No. 34

Introduced by Senator Hill

December 1, 2014

An act to amend Sections 1798.29 and 1798.82 of, and to add Title 1.81.23 (commencing with Section 1798.90.5) to Part 4 of Division 3 of, the Civil Code, relating to personal information.

LEGISLATIVE COUNSEL’S DIGEST

SB 34, as amended, Hill. Automated license plate recognition systems: use of data.

(1) Existing law authorizes the Department of the California Highway Patrol to retain license plate data captured by license plate recognition (LPR) technology, also referred to as an automated license plate recognition (ALPR) system, for not more than 60 days unless the data is being used as evidence or for the investigation of felonies. Existing law prohibits the department from selling the data or from making the data available to an agency that is not a law enforcement agency or an individual that is not a law enforcement officer.

Existing law authorizes the department to use LPR data for the purpose of locating vehicles or persons reasonably suspected of being involved in the commission of a public offense, and requires the department to monitor the internal use of the data to prevent unauthorized use and to submit to the Legislature, as a part of the annual automobile theft report, information on the department’s LPR practices and usage.

This bill would impose specified requirements on an “ALPR operator” as defined, including, among others, ensuring that the information the ALPR operator collects is protected with certain safeguards, and implementing and maintaining specified security procedures and a usage and privacy policy with respect to that information.

The bill would require an ALPR operator that accesses or provides access to ALPR information to maintain a specified record of that access.

This bill would also require an “ALPR end-user,” as defined, to implement and maintain a specified usage and privacy policy.

The bill would, in addition to any other sanctions, penalties, or remedies provided by law, authorize an individual who has been harmed by a violation of these provisions to bring a civil action in any court of competent jurisdiction against a person who knowingly caused that violation.

The bill would require a public agency that considers implementing a program to gather information through the use of an ALPR system to provide an opportunity for public comment at a regularly scheduled public meeting of the governing body of the public agency before it implements the program.

(2) Existing law requires any agency, and any person or business conducting business in California, that owns or licenses computerized data that includes personal information, as defined, to disclose in specified ways, any breach of the security of the system or data, as defined, following discovery or notification of the security breach, to any California resident whose unencrypted personal information was, or is reasonably believed to have been, acquired by an unauthorized person. Existing law defines “personal information” for these purposes to include an individual’s first name and last name, or first initial and last name, in combination with one or more designated data elements relating to, among other things, social security numbers, driver’s license numbers, financial accounts, and medical information.

This bill would include information or data collected through the use or operation of an automated license plate recognition system, when that information is not encrypted and is used in combination with an individual’s name, in the definition of “personal information” discussed above.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1798.29 of the Civil Code is amended
to read:

1798.29.  

(a) Any agency that owns or licenses computerized
data that includes personal information shall disclose any breach
of the security of the system following discovery or notification
of the breach in the security of the data to any resident of California
whose unencrypted personal information was, or is reasonably
believed to have been, acquired by an unauthorized person. The
disclosure shall be made in the most expedient time possible and
without unreasonable delay, consistent with the legitimate needs
of law enforcement, as provided in subdivision (c), or any measures
necessary to determine the scope of the breach and restore the
reasonable integrity of the data system.

(b) Any agency that maintains computerized data that includes
personal information that the agency does not own shall notify the
owner or licensee of the information of any breach of the security
of the data immediately following discovery, if the personal
information was, or is reasonably believed to have been, acquired
by an unauthorized person.

(c) The notification required by this section may be delayed if
a law enforcement agency determines that the notification will
impede a criminal investigation. The notification required by this
section shall be made after the law enforcement agency determines
that it will not compromise the investigation.

(d) Any agency that is required to issue a security breach
notification pursuant to this section shall meet all of the following
requirements:

(1) The security breach notification shall be written in plain
language.

(2) The security breach notification shall include, at a minimum,
the following information:

(A) The name and contact information of the reporting agency
subject to this section.

(B) A list of the types of personal information that were or are
reasonably believed to have been the subject of a breach.

(C) If the information is possible to determine at the time the
notice is provided, then any of the following: (i) the date of the
breach, (ii) the estimated date of the breach, or (iii) the date range
within which the breach occurred. The notification shall also
include the date of the notice.

(D) Whether the notification was delayed as a result of a law
enforcement investigation, if that information is possible to
determine at the time the notice is provided.

(E) A general description of the breach incident, if that
information is possible to determine at the time the notice is
provided.

(F) The toll-free telephone numbers and addresses of the major
credit reporting agencies, if the breach exposed a social security
number or a driver’s license or California identification card
number.

(3) At the discretion of the agency, the security breach
notification may also include any of the following:

(A) Information about what the agency has done to protect
individuals whose information has been breached.

(B) Advice on steps that the person whose information has been
breached may take to protect himself or herself.

(4) In the case of a breach of the security of the system involving
personal information defined in paragraph (2) of subdivision (g)
for an online account, and no other personal information defined
in paragraph (1) of subdivision (g), the agency may comply with
this section by providing the security breach notification in
electronic or other form that directs the person whose personal
information has been breached to promptly change his or her
password and security question or answer, as applicable, or to take
other steps appropriate to protect the online account with the
agency and all other online accounts for which the person uses the
same user name or email address and password or security question
or answer.

(5) In the case of a breach of the security of the system involving
personal information defined in paragraph (2) of subdivision (g)
for login credentials of an email account furnished by the agency,
the agency shall not comply with this section by providing the
security breach notification to that email address, but may, instead,
comply with this section by providing notice by another method
described in subdivision (i) or by clear and conspicuous notice
delivered to the resident online when the resident is connected to
the online account from an Internet Protocol address or online
location from which the agency knows the resident customarily
accesses the account.

(e) Any agency that is required to issue a security breach
notification pursuant to this section to more than 500 California
residents as a result of a single breach of the security system shall
electronically submit a single sample copy of that security breach
notification, excluding any personally identifiable information, to
the Attorney General. A single sample copy of a security breach
notification shall not be deemed to be within subdivision (f) of
Section 6254 of the Government Code.

(f) For purposes of this section, “breach of the security of the
system” means unauthorized acquisition of computerized data that
compromises the security, confidentiality, or integrity of personal
information maintained by the agency. Good faith acquisition of
personal information by an employee or agent of the agency for
the purposes of the agency is not a breach of the security of the
system, provided that the personal information is not used or
subject to further unauthorized disclosure.

(g) For purposes of this section, “personal information” means
either of the following:

(1) An individual’s first name or first initial and 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:

(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 that would permit access to an individual’s financial
account.

(D) Medical information.

(E) Health insurance information.

(F) Information or data collected through the use or operation
of an automated license plate recognition system, as defined in
Section 1798.90.5.

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

(h) (1) For purposes of this section, “personal information”
does not include publicly available information that is lawfully
made available to the general public from federal, state, or local
government records.

(2) For purposes of this section, “medical information” means
any information regarding an individual’s medical history, mental
or physical condition, or medical treatment or diagnosis by a health
care professional.

(3) For purposes of this section, “health insurance information”
means an individual’s health 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.

(i) For purposes of this section, “notice” may be provided by
one of the following methods:

(1) Written notice.

(2) Electronic notice, if the notice provided is consistent with
the provisions regarding electronic records and signatures set forth
in Section 7001 of Title 15 of the United States Code.

(3) Substitute notice, if the agency demonstrates that the cost
of providing notice would exceed two hundred fifty thousand
dollars ($250,000), or that the affected class of subject persons to
be notified exceeds 500,000, or the agency does not have sufficient
contact information. Substitute notice shall consist of all of the
following:

(A) Email notice when the agency has an email address for the
subject persons.

(B) Conspicuous posting of the notice on the agency’s Internet
Web site page, if the agency maintains one.

(C) Notification to major statewide media and the Office of
Information Security within the Department of Technology.

(j) Notwithstanding subdivision (i), an agency that maintains
its own notification procedures as part of an information security
policy for the treatment of personal information and is otherwise
consistent with the timing requirements of this part shall be deemed
to be in compliance with the notification requirements of this
section if it notifies subject persons in accordance with its policies
in the event of a breach of security of the system.

(k) Notwithstanding the exception specified in paragraph (4) of
subdivision (b) of Section 1798.3, for purposes of this section,
“agency” includes a local agency, as defined in subdivision (a) of
Section 6252 of the Government Code.

SEC. 2.  

Section 1798.82 of the Civil Code is amended to read:

1798.82.  

(a) A person or business that conducts business in
California, and that owns or licenses computerized data that
includes personal information, shall disclose a breach of the
security of the system following discovery or notification of the
breach in the security of the data to a resident of California whose
unencrypted personal information was, or is reasonably believed
to have been, acquired by an unauthorized person. The disclosure
shall be made in the most expedient time possible and without
unreasonable delay, consistent with the legitimate needs of law
enforcement, as provided in subdivision (c), or any measures
necessary to determine the scope of the breach and restore the
reasonable integrity of the data system.

(b) A person or business that maintains computerized data that
includes personal information that the person or business does not
own shall notify the owner or licensee of the information of the
breach of the security of the data immediately following discovery,
if the personal information was, or is reasonably believed to have
been, acquired by an unauthorized person.

(c) The notification required by this section may be delayed if
a law enforcement agency determines that the notification will
impede a criminal investigation. The notification required by this
section shall be made promptly after the law enforcement agency
determines that it will not compromise the investigation.

(d) A person or business that is required to issue a security
breach notification pursuant to this section shall meet all of the
following requirements:

(1) The security breach notification shall be written in plain
language.

(2) The security breach notification shall include, at a minimum,
the following information:

(A) The name and contact information of the reporting person
or business subject to this section.

(B) A list of the types of personal information that were or are
reasonably believed to have been the subject of a breach.

(C) If the information is possible to determine at the time the
notice is provided, then any of the following: (i) the date of the
breach, (ii) the estimated date of the breach, or (iii) the date range
within which the breach occurred. The notification shall also
include the date of the notice.

(D) Whether notification was delayed as a result of a law
enforcement investigation, if that information is possible to
determine at the time the notice is provided.

(E) A general description of the breach incident, if that
information is possible to determine at the time the notice is
provided.

(F) The toll-free telephone numbers and addresses of the major
credit reporting agencies if the breach exposed a social security
number or a driver’s license or California identification card
number.

(G) If the person or business providing the notification was the
source of the breach, an offer to provide appropriate identity theft
prevention and mitigation services, if any, shall be provided at no
cost to the affected person for not less than 12 months, along with
all information necessary to take advantage of the offer to any
person whose information was or may have been breached if the
breach exposed or may have exposed personal information defined
in subparagraphs (A) and (B) of paragraph (1) of subdivision (h).

(3) At the discretion of the person or business, the security
breach notification may also include any of the following:

(A) Information about what the person or business has done to
protect individuals whose information has been breached.

(B) Advice on steps that the person whose information has been
breached may take to protect himself or herself.

(4) In the case of a breach of the security of the system involving
personal information defined in paragraph (2) of subdivision (h)
for an online account, and no other personal information defined
in paragraph (1) of subdivision (h), the person or business may
comply with this section by providing the security breach
notification in electronic or other form that directs the person whose
personal information has been breached promptly to change his
or her password and security question or answer, as applicable, or
to take other steps appropriate to protect the online account with
the person or business and all other online accounts for which the
person whose personal information has been breached uses the
same user name or email address and password or security question
or answer.

(5) In the case of a breach of the security of the system involving
personal information defined in paragraph (2) of subdivision (h)
for login credentials of an email account furnished by the person
or business, the person or business shall not comply with this
section by providing the security breach notification to that email
address, but may, instead, comply with this section by providing
notice by another method described in subdivision (j) or by clear
and conspicuous notice delivered to the resident online when the
resident is connected to the online account from an Internet
Protocol address or online location from which the person or
business knows the resident customarily accesses the account.

(e) A covered entity under the federal Health Insurance
Portability and Accountability Act of 1996 (42 U.S.C. Sec. 1320d
et seq.) will be deemed to have complied with the notice
requirements in subdivision (d) if it has complied completely with
Section 13402(f) of the federal Health Information Technology
for Economic and Clinical Health Act (Public Law 111-5).
However, nothing in this subdivision shall be construed to exempt
a covered entity from any other provision of this section.

(f) A person or business that is required to issue a security breach
notification pursuant to this section to more than 500 California
residents as a result of a single breach of the security system shall
electronically submit a single sample copy of that security breach
notification, excluding any personally identifiable information, to
the Attorney General. A single sample copy of a security breach
notification shall not be deemed to be within subdivision (f) of
Section 6254 of the Government Code.

(g) For purposes of this section, “breach of the security of the
system” means unauthorized acquisition of computerized data that
compromises the security, confidentiality, or integrity of personal
information maintained by the person or business. Good faith
acquisition of personal information by an employee or agent of
the person or business for the purposes of the person or business
is not a breach of the security of the system, provided that the
personal information is not used or subject to further unauthorized
disclosure.

(h) For purposes of this section, “personal information” means
either of the following:

(1) An individual’s first name or first initial and 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:

(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 that would permit access to an individual’s financial
account.

(D) Medical information.

(E) Health insurance information.

(F) Information or data collected through the use or operation
of an automated license plate recognition system, as defined in
Section 1798.90.5.

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

(i) (1) For purposes of this section, “personal information” does
not include publicly available information that is lawfully made
available to the general public from federal, state, or local
government records.

(2) For purposes of this section, “medical information” means
any information regarding an individual’s medical history, mental
or physical condition, or medical treatment or diagnosis by a health
care professional.

(3) For purposes of this section, “health insurance information”
means an individual’s health 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.

(j) For purposes of this section, “notice” may be provided by
one of the following methods:

(1) Written notice.

(2) Electronic notice, if the notice provided is consistent with
the provisions regarding electronic records and signatures set forth
in Section 7001 of Title 15 of the United States Code.

(3) Substitute notice, if the person or business demonstrates that
the cost of providing notice would exceed two hundred fifty
thousand dollars ($250,000), or that the affected class of subject
persons to be notified exceeds 500,000, or the person or business
does not have sufficient contact information. Substitute notice
shall consist of all of the following:

(A) Email notice when the person or business has an email
address for the subject persons.

(B) Conspicuous posting of the notice on the Internet Web site
page of the person or business, if the person or business maintains
one.

(C) Notification to major statewide media.

(k) Notwithstanding subdivision (j), a person or business that
maintains its own notification procedures as part of an information
security policy for the treatment of personal information and is
otherwise consistent with the timing requirements of this part, shall
be deemed to be in compliance with the notification requirements
of this section if the person or business notifies subject persons in
accordance with its policies in the event of a breach of security of
the system.

SEC. 3.  

Title 1.81.23 (commencing with Section 1798.90.5)
is added to Part 4 of Division 3 of the Civil Code, to read:

 

Title 1.81.23.  COLLECTION OF LICENSE PLATE
INFORMATION

 

1798.90.5.  

The following definitions shall apply for purposes
of this title:

(a) “Automated license plate recognition end-user” or “ALPR
end-user” means a person that accesses or uses ALPR information,
but does not include a transportation agency when subject to
Section 31490 of the Streets and Highways Code.

(b) “Automated license plate recognition information,” or
“ALPR information” means information or data collected through
the use of an ALPR system.

(c) “Automated license plate recognition operator” or “ALPR
operator” means a person that operates an ALPR system, or that
stores or maintains ALPR information, but does not include a
transportation agency when subject to Section 31490 of the Streets
and Highways Code.

(d) “Automated license plate recognition system” or “ALPR
system” means a system of one or more mobile or fixed cameras
combined with computer algorithms to read and convert images
of registration plates and the characters they contain into
computer-readable data.

(e) “Person” includes a law enforcement agency, government
agency, private entity, or individual.

(f) “Public agency” means and includes every state agency and
every local agency.

1798.90.51.  

An ALPR operator shall do all of the following:

(a) (1) Ensure that ALPR information is protected with
reasonable operational, administrative, technical, and physical
safeguards to ensure its confidentiality and integrity.

(2) Implement and maintain reasonable security procedures and
practices in order to protect ALPR information from unauthorized
access, destruction, use, modification, or disclosure.

(b) (1) Implement and maintain a usage and privacy policy in
order to ensure that the begin delete collection end delete begin insert collection, use, maintenance,
sharing, and dissemination end insert of ALPR information is consistent
with respect for individuals’ privacy and civil liberties. The usage
and privacy policy shall be available in writing, and, if the ALPR
operator has an Internet Web site, the usage and privacy policy
shall be posted conspicuously on that Internet Web site.

(2) The usage and privacy policy shall, at a minimum, include
all of the following:

(A) The authorized purposes for using ALPR systems and
collecting ALPR information.

(B) A description of the employees and independent contractors
who are authorized to use ALPR systems, to collect ALPR
information, and to access ALPR information. The policy shall
identify the training requirements necessary for those authorized
employees and independent contractors.

(C) A description of how the use of ALPR systems will be
monitored to ensure compliance with all applicable privacy laws
and a process for periodic system audits, including audits of the
access log required by Section 1798.90.52.

(D) A description of reasonable measures that will be used to
ensure the accuracy of ALPR information and a process to correct
data errors.

(E) A description of how the ALPR operator will comply with
the security procedures and practices implemented and maintained
pursuant to subdivision begin delete (b). end delete begin insert (a). end insert

(F) The length of time ALPR information will be stored or
retained.

(G) The official custodian, or owner, of ALPR information and
which employees and independent contractors have the
responsibility and accountability for implementing subdivision begin delete (b) end delete
begin insert (a) end insert and this subdivision.

(H) The purpose of, and process for, sharing or disseminating
ALPR information with other persons.

1798.90.52.  

If an ALPR operator accesses or provides access
to ALPR information, the ALPR operator shall maintain a record
of that access. At a minimum, the record shall include all of the
following:

(a) The date and time the information is accessed.

(b) The license plate number or other data elements used to
query the ALPR database or system.

begin delete

(c) The person who accesses the information.

end delete begin insert

(c) The name of the person who accesses the information, and,
as applicable, the organization or entity with whom the person is
affiliated.

end insert

(d) The purpose for accessing the information.

1798.90.53.  

(a) An ALPR end-user shall implement and
maintain a usage and privacy policy in order to ensure that the
begin delete access and use end delete begin insert access, use, sharing, and dissemination end insert of ALPR
information is consistent with respect for individuals’ privacy and
civil liberties. The usage and privacy policy shall be available in
writing, and, if the ALPR end-user has an Internet Web site, the
usage and privacy policy shall be posted conspicuously on that
Internet Web site.

(b) The usage and privacy policy shall, at a minimum, include
all of the following:

(1) The authorized purposes for accessing and using ALPR
information.

(2) A description of the employees and independent contractors
who are authorized to access and use ALPR information. The
policy shall identify the training requirements necessary for those
authorized employees and independent contractors.

(3) A description of how the access and use of ALPR
information will be monitored to ensure compliance with all
applicable privacy laws and a process for periodic system audits.

(4) The length of time ALPR information will be retained by
the ALPR end-user and the process the ALPR end-user will utilize
to determine if and when to destroy the retained ALPR information.

(5) The official begin delete custodian end delete begin insert custodian, or owner, end insert of ALPR
information.

(6) The purpose of, and process for, sharing or disseminating
ALPR information with other persons.

(7) A description of how the end-user will implement reasonable
security measures to secure ALPR information from unauthorized
access, destruction, use, modification, or disclosure.

begin insert

(8) Which employees and independent contractors have the
responsibility and accountability for implementing subdivision (a)
and this subdivision.

end insert

1798.90.54.  

(a) In addition to any other sanctions, penalties,
or remedies provided by law, an individual who has been harmed
by a violation of this title may bring a civil action in any court of
competent jurisdiction against a person who knowingly caused
that violation.

(b) The court may award a combination of any one or more of
the following:

(1) Actual damages, but not less than liquidated damages in the
amount of two thousand five hundred dollars ($2,500).

(2) Punitive damages upon proof of willful or reckless disregard
of the law.

(3) Reasonable attorney’s fees and other litigation costs
reasonably incurred.

(4) Other preliminary and equitable relief as the court determines
to be appropriate.

1798.90.55.  

Notwithstanding any other law or regulation, a
public agency that considers implementing a program to gather
information through the use of an ALPR system shall provide an
opportunity for public comment at a regularly scheduled public
meeting of the governing body of the public agency before it
implements the program.