BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015 - 2016 Regular Session
SB 249 (Hueso)
Version: February 18, 2015
Hearing Date: April 21, 2015
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Vehicles: enhanced driver's license
DESCRIPTION
This bill would authorize the Department of Motor Vehicles (DMV)
to enter into a memorandum of understanding with a federal
agency for the issuance of an enhanced driver's license,
instruction permit, provisional license, or identification card.
This bill would authorize the DMV to issue or renew, upon
request, an enhanced driver's license, instruction permit,
provisional license, or identification card for specified
persons.
This bill would prohibit an employer from requiring an employee
to apply for, or use, an enhanced driver's license or
identification card as a condition of employment or to
discriminate or otherwise retaliate against an employee who
refuses to apply for, or use, an enhanced driver's license or
identification card.
This bill would also require the DMV to submit an annual report,
as specified, on the implementation of the enhanced driver's
license and identification card. The bill would require a person
applying for an enhanced driver's license, instruction permit,
provisional license, or identification card to submit an
additional application fee, not to exceed the reasonable
regulatory cost or $55, whichever is less, and to provide
specified information to the applicant.
BACKGROUND
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On December 17, 2004, the Intelligence Reform and Terrorism
Prevention Act of 2004 was passed and, as of June 1, 2009,
requires all citizens of the United States (U.S.), Canada,
Mexico, and Bermuda to have a passport or other accepted
document that establishes the bearer's identity and nationality
to enter or depart the U.S. from within the Western Hemisphere.
(Public Law 108-458.) In 2008, the Western Hemisphere Travel
Initiative (Public Law 110-53) (WHTI) established the document
requirements for travel by land or sea into the U.S. from
Canada, Mexico, the Caribbean, and Bermuda. According to the
U.S. Customs and Border Protection, the goal of WHTI is to
strengthen border security while facilitating entry in the U.S.
for its citizens and legitimate international travelers, making
the process more efficient and convenient. (U.S. Customs and
Border Protection, Fact Sheet, WHTI Land and Sea Travel Document
Requirements [as of Apr. 9, 2015].)
To re-enter the U.S., U.S. citizens can present a valid U.S.
passport, passport card, enhanced driver's license, trusted
traveler program card, U.S. military identification card, U.S.
merchant mariner document, FORM I-872 American Indian card, or
enhanced tribal card. Several states, including Michigan, New
York, Vermont, and Washington, are producing enhanced driver's
licenses (EDLs), which fulfill the WHTI requirements and provide
travelers with an additional means to prove identification and
citizenship when entering the U.S. EDLs contain a radio
frequency identification chip (RFID) that is machine readable
and transmits and receives data.
This bill would authorize the Department of Motor Vehicles (DMV)
to contract with a federal agency to issue EDLs, which would
contain RFIDs that transmit a number associated with the
identification and citizenship of the holder. This bill would
also provide employment retaliation protections for individuals
who do not want to obtain an EDL, and make the documentation
required to be provided by an EDL applicant to the DMV
confidential and non-disclosable.
This bill is substantially similar to SB 1213 (Hueso, 2014),
which was held in the Senate Transportation and Housing
Committee, SB 397 (Hueso, 2013), which was held in the Assembly
Appropriations Committee, AB 2113 (Hueso, 2012), which was held
in the Assembly Appropriations Committee, and AB 17 (Hueso,
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2013), which was held in the Assembly Transportation Committee.
This bill was heard by the Senate Transportation and Housing
Committee on April 7, 2015, and passed out on a vote of 11-0.
CHANGES TO EXISTING LAW
Existing law provides that all people in this state have an
inalienable, constitutional right to privacy. (Cal. Const., art
I, Sec. 1.)
Existing law , the Information Practices Act of 1977, precludes a
state agency from disclosing personal information it possesses
"in a manner that would link the information disclosed to the
individual to whom it pertains," except in specified
circumstances. (Civ. Code Sec. 1798.24.)
Existing law provides that a person or entity that intentionally
remotely reads or attempts to remotely read a person's
identification document, including a driver's license or
identification card, using radio frequency identification
(RFID), for the purpose of reading that person's identification
document without that person's knowledge and prior consent,
shall be punished by imprisonment in a county jail for up to one
year, a fine of not more than $1,500, or both that fine and
imprisonment. (Civ. Code Sec. 1798.79(a).) Further, a person
or entity that knowingly discloses, or causes to be disclosed,
the operational system keys used in a contactless identification
document system shall be punished by imprisonment in a county
jail for up to one year, a fine of not more than $1,500, or both
that fine and imprisonment. (Civ. Code Sec. 1798.79(b).)
Existing law authorizes the Department of Motor Vehicles (DMV)
to issue driver's licenses and identification cards (IDs).
(Veh. Code Sec. 12500 et seq.) Existing law prohibits the DMV,
unless requested by the licensee, from distributing or selling
the licensee's picture or photograph or any information
pertaining to the licensee's physical characteristics to any
private individual, other than the licensee, or to any firm,
copartnership, association, or corporation. That prohibition
does not apply to any private business entity that contracts
with the DMV for the production of driver's licenses and IDs, if
the contract prohibits the unauthorized use and disclosure of
the information. (Veh. Code Sec. 12800.5(a).)
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This bill would authorize the DMV to enter into a memorandum of
understanding with a federal agency for the purposes of
obtaining approval for the issuance of an enhanced driver's
license (EDL), instruction permit, provisional license, or ID
that is acceptable as proof of identity and citizenship pursuant
to the federal Western Hemisphere Travel Initiative (Public Law
110-53 and Public Law 108-458).
This bill would authorize, upon the request of an applicant, the
DMV to issue an initial EDL, instruction permit, provisional
license, or ID to, or renew the EDL, instruction permit,
provisional license, or ID of, a person who satisfies all of the
following: (1) is 16 years of age or older; (2) is a resident
of this state; and (3) is a citizen of the United States.
This bill would require, in addition to other information
required to apply for a driver's license, the applicant to
submit sufficient proof that meets the requirements of the
federal Western Hemisphere Travel Initiative (Public Law 110-53
and Public Law 108-458) to establish his or her identity,
residency, and citizenship.
This bill would require the EDL applicant to certify, under the
penalty of perjury, that the information submitted is true and
correct to the best of the knowledge of the applicant, and
require the applicant to sign a declaration acknowledging his or
her understanding of radio frequency identification technology.
This bill would require the EDL, instruction permit, provisional
license, or ID to include:
radio frequency identification technology that will contain
only a randomly assigned encrypted number, as specified, and
no personal data, biometric information, or number other than
the randomly assigned number;
a machine readable zone or barcode that can be electronically
read by the cross border patrol and contains only as much
information as is required by the federal Western Hemisphere
Travel Initiative (Public Law 110-53 and Public Law 108-458)
to permit a border crossing; and
reasonable security measures, including tamper-resistant
features to prevent unauthorized duplication or cloning and to
protect against unauthorized disclosure of personal
information regarding the person who is the subject of the
license, permit, or card.
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This bill would provide that an EDL may be suspended, revoked,
or restricted.
This bill would prohibit an employer from requiring an employee
to apply for, or use, an EDL or ID as a condition of employment,
and prohibit an employer from discharging an employee or
otherwise discriminating or retaliating against an employee who
refuses to apply for, or use, an EDL or ID.
This bill would require the DMV to inform the applicant, either
orally or in writing, that the randomly assigned radio frequency
identification number can be read remotely without the holder's
knowledge, especially if the EDL, instruction permit,
provisional license, or ID is not enclosed in a protective
shield or similar tamper-resistant device.
This bill would require an applicant applying for an initial
EDL, instruction permit, provisional license, or ID, or renewing
an EDL, instruction permit, provisional license, or ID, to have
his or her photograph and signature captured or reproduced by
the DMV at the time of application or renewal.
This bill would provide that the photograph and signature would
only be available to the United States Customs and Border
Protection database or as required by the United States
Department of Homeland Security for purposes of facilitating the
purpose of the federal Western Hemisphere Travel Initiative
(Public Law 110-53 and Public Law 108-458), and prohibit the DMV
from disclosing the person's photograph or signature, or copies
of a digital image of any document required.
This bill would require the DMV to examine and verify the
genuineness, regularity, and legality of an application and
proof submitted to the DMV for an initial issuance or renewal of
an EDL, instruction permit, provisional license, or ID.
This bill would authorize the DMV to require the submission of
additional information to establish identity, residency, and
citizenship.
This bill would require the DMV to deny an application or
renewal of an EDL, instruction permit, provisional license, or
ID if the DMV is not satisfied with the genuineness, regularity,
and legality of the application or supporting documentation or
the truth of any statement contained in the application or
supporting documentation, or for any other reason authorized by
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law.
This bill would authorize an applicant to appeal, as specified,
the DMVs denial of an application for the issuance or renewal of
an EDL, instruction permit, provisional license, or ID.
This bill would require the DMV to retain copies or digital
images of documents provided by the applicant.
This bill would require the DMV, except as required by other
law, in the case of the denial of an application for the
issuance or renewal of an EDL, instruction permit, provisional
license, or ID, to retain the photograph of the applicant and
the reason for denial for not less than one year, unless fraud
is suspected, in which case the applicant's photograph and the
reason for denial shall be retained for not less than 10 years.
This bill would exempt the required photograph, signature,
copies, and digital image of documents from public disclosure
pursuant to the California Public Records Act.
This bill would prohibit, except as required by federal law,
information submitted by an applicant from being disclosed to a
foreign nation.
This bill would require the applicant, in addition to other
required fees, to submit an additional nonrefundable application
fee with the application. This bill would require the DMV to
set, by regulation, that application fee in an amount not to
exceed the reasonable regulatory cost or $55, whichever is less.
This bill would require fees submitted to be deposited into the
Enhanced Driver's License and Identification Card Subaccount, as
specified.
This bill would require the DMV to submit an annual report, as
specified, to the Assembly and Senate Committees on Judiciary,
the Senate Committee on Transportation and Housing, and the
Assembly Committee on Transportation. This bill would require
the report to include, but not be limited to, information on the
number of EDLs and IDs issued, the effect on wait times and
traffic congestion at points of entry, and whether or not there
have been any security or privacy breaches related to the use of
the EDLs and IDs.
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This bill would make various related legislative findings and
declarations.
COMMENT
1. Stated need for the bill
The author writes:
There are seven land crossings referred to as Points of Entry
(POEs). The San Diego County-Tijuana/Tecate region is home to
the San Ysidro-Puerta México, the Otay Mesa-Mesa de Otay, and
the Tecate-Tecate port of entry, Otay Mesa East (proposed)
while the Imperial County-Mexicali region hosts the
Calexico-Mexicali, Calexico East-Mexicali II, and Andrade-Los
Algodones.
Each year, 45 million vehicle passengers and 15 million
pedestrians cross the border into California from the six
ports of entry -- San Ysidro, Otay Mesa, Tecate, Calexico,
Calexico East and Andrade. In San Ysidro, the busiest port of
entry in the world, an astounding 50,000 vehicles and 25,000
pedestrians are processed into the U.S. each day. Congestion
at these POEs has led to significant negative impacts on air
quality, neighboring communities, businesses, tourists, and
employees traveling to work.
Long wait times (as high as three to four hours) between
Imperial County and the Mexico border accounted for an
estimated output loss of $1.4 billion and 11,600 lost jobs
nationally in 2007. More recent studies on the Imperial POEs
show that losses to California, alone, were $620 million. The
San Diego POEs have similarly been impacted, with a loss of
nearly $1.3 billion in revenues, three million potential
working hours, 35,000 jobs and $42 million in wages annually
in the San Diego region alone.
In order to fully leverage California's economy and improve
trade, business, and tourism, the state needs a modern,
efficient and responsible way to expedite the movement of
people across the California-Mexico border. The [enhanced
driver's license (EDL)] can greatly reduce wait times at the
border by incentivizing significantly more cross-border travel
thereby resulting in increased revenue and other economic
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benefits to California, while strengthening border security.
2. Radio frequency transmission chip transfer of information
As of June 1, 2009, a change in federal law requires most United
States citizens to present a valid passport or other document to
enter the United States at all land and sea border crossings
between the United States (U.S.) and Canada, Mexico, Bermuda and
some countries in the Caribbean. This bill would authorize the
DMV to issue enhanced driver's licenses (EDLs) and
identification cards (IDs) containing a radio frequency
identification number (RFID), which transmits identification and
citizenship information in the form of a randomly assigned
number associated with the EDL or ID holder to the U.S. Customs
and Border Patrol monitoring points of entry into the U.S.
The author asserts that state-issued EDLs and IDs, which are
already in use in four other states, are cheaper than passports
and are expected to ease long lines at border crossings between
the U.S. and Canada and the U.S. and Mexico. The California
Chamber of Commerce (CalChamber), in support, states that "[t]he
ports of entry along the California-Mexico border are among the
busiest ports in the world. Each year, forty five million
vehicle passengers cross the border via one of the six ports of
entry. At San Ysidro Port, fifty thousand vehicles are
processed by U.S. Customs and Border Patrol (CPB) each day. The
average wait for travelers at these ports is over an hour.
These delays result in a loss of eight million trips each year.
In the San Diego region alone, this results in an estimated loss
of $1.2 billion in revenues." CalChamber contends that easing
border crossings is a plus for the economy, ensuring that
commerce continues to flow freely and securely, while offering a
convenience for all U.S. citizens who travel in North America.
The American Civil Liberties Union of California (ACLU), in
opposition, argues that the information transmitted by the radio
frequency identification chips (RFIDs) are not like those used
in passports, which use a different identifying number each time
the passport is used. Those groups argue that RFIDs can
transmit the holder's identifying number, which is not
encrypted, up to 30 feet, which potentially compromises the
holder's personally identifying information associated with that
number.
According to a recent news article, RFIDs in passports "can be
scanned only by someone at close range with an RFID reader,
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usually within a couple feet. While there's valid concern about
having your microchipped passport 'skimmed' [(collected)] by a
tech thief, actually having it happen is unlikely, some security
officials say." The article further reported:
"Yes, someone nearby could read what's in your wallet. That's
why I keep my passport in an RFID-shielded wallet," said G.
Mark Hardy, president of National Security Corp., based in
Rosedale, Md., which provides cybersecurity expertise to
government and corporate clients. But, he said, "it's less
likely to happen, at this point in time, because it's so much
easier to do fraud some other way."
Since August 2007, all U.S. passports have come embedded with
an RFID chip, intended to deter fraud and improve security.
The chip contains the same information as on the passport's
picture page, including a digital version of your passport
photograph. (You can still use a pre-2007 passport that
doesn't contain a chip. Once your passport expires, a new one
will contain an RFID chip.)
According to the federal Bureau of Consular Affairs, the
passport chip is designed with security features to thwart
unauthorized access. Also, it can be "read" only when the
passport book is open. When the cover is shut, the
information on the chip supposedly can't be scanned by an RFID
device.
Separately, a newer U.S. travel document, a wallet-sized
passport card, also has a chip. It contains only an
identification number, not personal information from the card
itself. However, "To address concerns that passport card
bearers can be tracked by this technology," the consular
bureau's website says, "We are requiring that the vendor
provide a sleeve that will prevent the (passport) card from
being read while inside it." (C. Buck, Microchips in our
passports and credit cards: Are they safe?, The Sacramento Bee
(May 18, 2014)
[as of Apr. 9, 2015].)
Opponents also contend that this bill fails to include any
provisions requiring shielding or other physical
tamper-resistant measures, basic protections that can and should
be added to any use of EDL and have been found to effectively
reduce the potential of long-range unknown reading and other
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tampering. Supporters note that an EDL is an optional method of
identification and border crossers can still use a passport if
they prefer. The author also notes that the bill explicitly
requires applicants to sign a declaration acknowledging their
understanding of RFID technology and applicants would be
informed by the DMV that the randomly assigned RFID can be read
remotely without the holder's knowledge, especially if the EDL
or ID is not enclosed in a protective shield or similar
tamper-resistant device. However, another article discusses the
weakness of RFIDs in passports as follows:
To be sure, the RFID tags contain no personally identifiable
information, but rather what amounts to a record pointer to a
secure Department of Homeland Security database. But because
the pointer is a unique number, the American Civil Liberties
Union and other civil libertarians warn the cards are still
susceptible to abuse, especially if their RFID tags can be
read and captured in large numbers. Cloning the unique
electronic identifier is the first step in creating fraudulent
passport cards, they say.
The cards also amount to electronic license plates that could
be used to conduct clandestine surveillance. Law enforcement
officials could scan them at political rallies and then store
them in databases. The tags could also be correlated to other
signals, such as electronic toll-booth payment systems or
RFID-based credit cards, to track the detailed movements of
their holders. (D. Goodin, Passport RFIDs cloned wholesale by
$250 eBay auction spree, The Register (Feb. 2, 2009)
[as
of Apr. 9, 2015].)
The author contends that this bill requires encryption (if
agreed to by the U.S. Department of Homeland Security) and
prohibits the RFID from containing any other personal data,
biometric information, or number other than the randomly
assigned number. The author also notes that the EDL or ID would
contain a barcode that can be read and used only by border
patrol or the Department of Homeland Security. Further, the
bill requires reasonable security measures, including
tamper-resistant features to prevent unauthorized duplication or
cloning and protection against unauthorized disclosure of
personal information of the holder of the EDL or ID.
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Additionally, existing law provides criminal and civil liability
against individuals who unlawfully remotely reads or attempts to
remotely read a person's identification document, including a
driver's license or identification card, using RFID.
Notably, the bill would require the DMV to annually report to
DHS a number of statistics, including the number of security or
privacy breaches from using an EDL. Because of the
ever-increasing use of RFIDs in credit cards, security badges,
other forms of identification, car keys, and toll tags, it may
be difficult for the DMV to determine whether a privacy breach
is related to transmission of the RFID in an EDL.
It is important to note that this bill would require the DMV to
notify the applicant, either orally or in writing, that the
randomly assigned RFID can be read remotely without the holder's
knowledge, especially if the EDL or ID is not enclosed in a
protective shield or similar tamper-resistant device. To
clarify this requirement and make certain the applicant is aware
of the need to carry the EDL or ID in a protective shield, the
author offers the following amendments:
Author's amendments :
1. On page 5, strikes lines 30-35.
2. On page 5, before line 1, insert: "(3) The department
shall inform the applicant in writing that the randomly
assigned radio frequency identification number can be read
remotely without the holder's knowledge, especially if the
enhanced driver's license, instruction permit, provisional
license, or identification card is not enclosed in a
protective shield or similar tamper-resistant device."
3. On page 5, in line 1, strike and insert "(3)" with
"(4)".
This notice could be placed in the application for the EDL or ID
so the applicant is informed prior to filling out the
application.
3. Retaliation and discrimination prohibition
This bill would prohibit an employer from requiring an employee
to apply for or use an EDL as a condition of employment and
prohibits the employer from retaliating against an employee who
refuses to apply for or use an EDL. Supporters state that this
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provision is necessary to protect employees who cross borders on
a regular basis in the course of their employment. This
provision would prohibit an employer from coercing an employee
to use an EDL or ID if the employee prefers to use his or her
passport or other recognized means of proving identification and
citizenship at U.S. borders.
Although this bill would provide protection from retaliation or
discrimination against a worker who does not want to obtain an
enhanced driver's license, the bill does not contain any
mechanism to enforce this protection. For other employment
retaliation claims, existing law provides that any person who
believes that he or she has been discharged or otherwise
discriminated against in violation of any law under the
jurisdiction of the Labor Commissioner may file a complaint with
the division within six months after the occurrence of the
violation. (Lab. Code Sec. 98.7.)
To provide enforceable retaliation protection, the author offers
the following amendment to cross-reference the applicable
employment retaliation enforcement provision under the Labor
Code:
Author's amendment :
On page 5, between lines 29 and 30, insert:
(3) An employee who is discharged, threatened with
discharge, demoted, suspended, or in any other manner
discriminated or retaliated against in the terms and
conditions of employment by his or her employer because the
employee has exercised his or her rights as set forth in
this subdivision may file a complaint with the Division of
Labor Standards Enforcement of the Department of Industrial
Relations pursuant to Section 98.7 of the Labor Code.
(4) Notwithstanding any time limitation in Section 98.7 of
the Labor Code, an employee may file a complaint with the
Division of Labor Standards Enforcement of the Department
of Industrial Relations based upon a violation of this
subdivision within one year from the date of occurrence of
the violation.
4. California Public Records Act exemption
This bill would exempt from public disclosure pursuant to the
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California Public Records Act the photograph, signature, copies,
and digital image of documents of an applicant required by the
DMV to obtain an EDL or ID. This provision recognizes the
public policy of maintaining individual privacy, provides
protection against identity theft, and is consistent with the
confidentiality statutes for driver's licenses and
identification cards. (See Veh. Code Secs. 12800.5, 12800.7.)
Support : Baja California State Government; California Chamber
of Commerce; Casa Familiar; City of San Diego; Councilmember
Todd Gloria, City of San Diego; Hon. Juan Vargas,
Representative, 51st District, California, United States House
of Representatives; Imperial County Transportation Commission;
Mayor Mary Casillas Salas, City of Chula Vista; Otay Mesa
Chamber of Commerce; San Diego Association of Governments,
Executive Committee; San Diego Regional Chamber of Commerce; San
Diego-Tijuana Smart Border Coalition
Opposition : American Civil Liberties Union of California;
Calegislation; Consumer Action; Consumer Watchdog; Eagle Forum
of California; Electronic Frontier Foundation; Gun Owners of
California; Privacy Rights Clearinghouse
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
SB 1213 (Hueso, 2014) See Background.
SB 397 (Hueso, 2013) See Background.
AB 2113 (Hueso, 2012) See Background.
AB 17 (Hueso, 2013) See Background.
Prior Vote : Senate Transportation and Housing Committee: (Ayes
11, Noes 0)
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