BILL ANALYSIS                                                                                                                                                                                                    





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                            2015 - 2016  Regular  Session


          SB 206 (Gaines)
          Version: April 7, 2015
          Hearing Date:  April 28, 2015
          Fiscal: Yes
          Urgency: No
          TH   
                    

                                        SUBJECT
                                           
                             Vehicle Information Systems

                                      DESCRIPTION  

          This bill would prohibit the California Air Resources Board from  
          obtaining locational data or vehicle speed data from a vehicle's  
          computer system except for use in implementing California's  
          vehicular smog abatement program known as Smog Check.

                                      BACKGROUND  

          In 1982, California implemented a vehicular smog abatement  
          program popularly known as Smog Check as part of the state's  
          plan to meet federal air quality standards.  The Smog Check  
          program is administered by the Bureau of Automotive Repair (BAR)  
          within the Department of Consumer Affairs (DCA).  The Smog Check  
          program requires California-registered motor vehicles in certain  
          areas to have an emissions inspection every two years, and for  
          vehicles to receive an emissions test upon initial registration  
          or change of ownership.  The Smog Check program requires both a  
          tailpipe gas emissions test and an inspection of the vehicle's  
          on-board diagnostic system known as OBD II.

          The California Air Resources Board (CARB) is mandated under  
          existing law to work with and provide data and information to  
          DCA and BAR on several aspects of the Smog Check program,  
          including setting maximum emissions standards and developing  
          alternative test procedures for vehicles that have operational  
          problems with their OBD II systems.  This bill would prohibit  
          CARB from obtaining locational or vehicle speed data from a  








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          vehicle's computer system, including its OBD II system, except  
          as necessary to comply with the Smog Check vehicular inspection  
          program. 

                                CHANGES TO EXISTING LAW
           
           Existing law  establishes the Motor Vehicle Inspection Program  
          and directs the Department of Consumer Affairs (DCA) to take  
          those actions consistent with its statutory authority to ensure  
          that a reduction in vehicle emissions of hydrocarbons, carbon  
          monoxide, and oxides of nitrogen meets or exceeds the reductions  
          required by the amendments enacted to the Clean Air Act in 1990.  
           (Health & Saf. Code Sec. 44001.5.)

           Existing law  directs DCA, in cooperation with the California Air  
          Resources Board (CARB), to prescribe maximum emission standards  
          to be applied in inspecting motor vehicles under the Motor  
          Vehicle Inspection Program.  Existing law directs the standards  
          to be set at a level reasonably achievable for each class and  
          model of motor vehicle when operating in a reasonably sound  
          mechanical condition, as specified.  (Health & Saf. Code Sec.  
          440013.)

           Existing law  provides that a vehicular emissions test under this  
          Program shall be performed in accordance with procedures  
          prescribed by DCA and may require loaded mode dynamometer  
          testing, two-speed idle testing, testing utilizing a vehicle's  
          onboard diagnostic system, or other appropriate test procedures  
          as determined by DCA in consultation with CARB, as specified.   
          Existing law provides that DCA, in consultation with CARB, may  
          prescribe alternative test procedures that include loaded mode  
          dynamometer or two-speed idle testing for vehicles with onboard  
          diagnostic systems that DCA and CARB determine exhibit  
          operational problems.  (Health & Saf. Code Sec. 440012.)

           Existing law  prohibits any person other than the registered  
          owner of a motor vehicle from downloading or otherwise  
          retrieving data from the vehicle's event data recorder, except  
          as specified.  (Veh. Code Sec. 9951.)

           This bill  would prohibit CARB from obtaining locational data or  
          vehicle speed data from a vehicle information system.

           This bill  would state that the above prohibition does not apply  
          to the Motor Vehicle Inspection Program.







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           This bill  would define "vehicle information system" to mean a  
          computer or other device embedded or integrated into the  
          vehicle, other than an event recorder, that records, generates,  
          stores, or collects data that can by itself or with other  
          information be used to distinguish or individually identify the  
          registered owner, of the vehicle, the driver of the vehicle, or  
          the operation, use, or condition of the vehicle.







                                        COMMENT
           
           1.Stated need for the bill
           
          The author writes:

            In 2010, the Air Resource[s] Board and the Bureau of  
            Automotive Repair jointly sponsored AB 2289, which allowed the  
            use of OBDII when performing the biennial smog check in lieu  
            of tailpipe testing.  Utilizing the vehicle's own emission  
            monitoring systems allow for more accurate readings as well as  
            cut[s] down on the consumer's wait time.  While AB 2289 did  
            propel technological delivery into the 21st century, it also  
            opened the door for the possibility that state agencies may  
            view and retain more information than necessary when  
            performing smog check services.  As technology moves forward,  
            OBDII, or future data gathering and transfer systems, could  
            retain more sensitive information, including the location and  
            speed of the vehicle.
            . . .

            This bill would disallow the California Air Resources Board,  
            from obtaining and retaining a vehicle's location or speed  
            data from a motor vehicle's information system.  This bill  
            does not prohibit the Air Resource[s] Board from gathering  
            data necessary to carry out California's smog check program.

           2.Fundamental Right to Privacy
           
          California recognizes that the right to privacy is a fundamental  







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          right, and has enshrined that right along with other fundamental  
          rights in section 1, article I of the California Constitution.   
          The misuse of locational information taken from a vehicle's  
          on-board computer system threatens to undermine this fundamental  
          right, given the possibility that one could use the locational  
          history of a vehicle to extrapolate certain details about the  
          car's driver.  As the U.S. Supreme Court recently noted,  
          government access to a vehicle's locational data could enable it  
          "to ascertain, more or less at will, [a driver's] political and  
          religious beliefs, sexual habits, and so on."  (United States v.  
          Jones (2012) 132 S. Ct. 945, 956.)  California residents may be  
          less willing to exercise their associational and expressive  
          freedoms if they know that their movements could potentially be  
          accessed by the government through a vehicle's on-board computer  
          system.

          While this bill would ostensibly prevent such abuse, staff notes  
          that the bill stops well short of offering a comprehensive  
          solution to strengthening California's constitutional right to  
          privacy and preventing the potential misuse of vehicle generated  
          data, including locational information.  Last year, SB 994  
          (Monning, 2014) would have restricted the use of vehicle data  
          without the consent of a vehicle's owner by both the public and  
          private sector.  This bill limits its scope to only one agency  
          in the public sector, and that agency neither currently nor  
          plans in the future to collect locational data from vehicles.   
          (See California Air Resources Board, On-Board Diagnostic II (OBD  
          II) Systems - Fact Sheet/FAQs  
           [as of Apr.  
          22, 2015].)

          Staff further notes that this bill explicitly excludes the Smog  
          Check program from the scope of its prohibitions.  While this is  
          likely the primary means by which CARB would gain access to data  
          collected by a vehicle's on-board computer system, CARB may  
          administer other vehicle emissions reduction programs to which  
          this bill's prohibitions would apply.


           Support  :  California Construction Trucking Association

           Opposition  :  None Known

                                        HISTORY
           







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           Source  :  Author

           Related Pending Legislation  :  AB 886 (Chau, 2015) would prohibit  
          a transportation service network provider, as defined, from  
          requesting or requiring personally identifiable data, including  
          locational data, of a passenger unless the information is used  
          for certain purposes, including establishing, maintaining, and  
          updating a customer's account.   This bill would require a  
          transportation service network provider to provide an  
          accountholder with an opportunity to cancel or terminate an  
          account, and would require a transportation service network  
          provider to destroy or dispose of all personally identifiable  
          data in a secure manner when the information is no longer needed  
          for the purposes for which it was collected or when an  
          accountholder cancels or terminates his or her account.  This  
          bill is pending in the Assembly Utilities and Commerce  
          Committee.

           Prior Legislation  :

          SB 994 (Monning, 2014) would have required manufacturers of new  
          motor vehicles that record, generate, store, or collect vehicle  
          information to make certain disclosures to the registered owner  
          regarding the recordation, generation, storage, and collection  
          of that information.   This bill also would have required the  
          manufacturer to provide the registered owner of the vehicle with  
          access to the vehicle information, and would have prohibited  
          vehicle information from being downloaded or otherwise retrieved  
          from the motor vehicle without the consent of the registered  
          owner, except as specified.  This bill died in the Senate  
          Transportation and Housing Committee.

          AB 2289 (Eng, Ch. 258, Stats. 2010), among other things,  
          required the Department of Consumer Affairs to implement vehicle  
          emissions testing using a vehicle's on-board diagnostic system  
          in lieu of a dynamometer or idle test for specified vehicles.   
          This bill directed the Department, in consultation with the  
          California Air Resources Board, to determine the appropriate  
          emissions test procedures, and made other changes to the  
          Department's authority with respect to the Smog Check program,  
          including requirements relating to testing equipment and motor  
          vehicle emission data.

           Prior Vote  :  Senate Environmental Quality Committee (Ayes 6,  
          Noes 1)







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