BILL ANALYSIS
------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 1268|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
UNFINISHED BUSINESS
Bill No: SB 1268
Author: Simitian (D)
Amended: 8/20/10
Vote: 21
SENATE TRANSPORTATION & HOUSING COMMITTEE : 8-0, 4/6/10
AYES: Lowenthal, Huff, Ashburn, DeSaulnier, Kehoe,
Oropeza, Pavley, Simitian
NO VOTE RECORDED: Harman
SENATE JUDICIARY COMMITTEE : 3-1, 4/13/10
AYES: Corbett, Hancock, Leno
NOES: Walters
NO VOTE RECORDED: Harman
SENATE APPROPRIATIONS COMMITTEE : 6-3, 5/27/10
AYES: Kehoe, Alquist, Corbett, Leno, Wolk, Yee
NOES: Denham, Walters, Wyland
NO VOTE RECORDED: Cox, Price
SENATE FLOOR : 24-10, 6/1/10
AYES: Aanestad, Alquist, Ashburn, Calderon, Cedillo,
Corbett, DeSaulnier, Florez, Hancock, Huff, Kehoe, Leno,
Liu, Lowenthal, Negrete McLeod, Padilla, Pavley, Price,
Romero, Simitian, Steinberg, Wolk, Wright, Yee
NOES: Cogdill, Correa, Cox, Denham, Dutton, Harman,
Hollingsworth, Runner, Strickland, Wyland
NO VOTE RECORDED: Ducheny, Oropeza, Walters, Wiggins,
Vacancy, Vacancy
ASSEMBLY FLOOR : 57-13, 8/23/10 - See last page for vote
CONTINUED
SB 1268
Page
2
SUBJECT : Disclosure of personal information
SOURCE : Author
DIGEST : This bill prohibits, with some exceptions, a
transportation agency from selling or otherwise providing
personally identifiable information of a person who
subscribes to an electronic toll collection system or who
uses a toll facility that employs such system and
establishes time periods up to which an agency may retain
that information. This bill also establishes a minimum
amount of money a person whose personally identifiable
information was knowingly sold or otherwise provided may
receive in damages and costs.
Assembly Amendments increase the amount of time a
transportation agency can store personally identifiable
information, and revise the circumstances in which a
transportation agency can make personally identifiable
information available to law enforcement.
ANALYSIS : Toll agencies may employ an automatic vehicle
identification system, referred to in this bill as an
electronic toll collection system, to facilitate toll
operations. FasTrak is the most common example of an
automatic vehicle identification system in use in
California. FasTrak systems allow subscribers to prepay
tolls thereby eliminating the need to stop at the toll
plaza. The system has three components: a transponder or
toll tag, which is placed inside the vehicle; an antenna
over the roadway that reads the transponder and deducts the
toll amount from a subscriber's account; and video cameras
that capture vehicles' license plates to identify toll
evaders. The FasTrak system tracks a subscriber's usage
and account balance. A monthly or quarterly statement
itemizing bridge use and account balance is sent to
subscribers via the postal mail or e-mail.
Even though each toll agency operates only those facilities
within its jurisdiction, existing law requires that the
Department of Transportation (Caltrans) and toll operators
develop functional specifications and standards for
SB 1268
Page
3
automatic vehicle identification systems so that vehicle
owners not be required to purchase or install more than one
device to use on all toll facilities in the state. This
functionality is known as interoperability.
In addition to FasTrak-type systems, some toll operators
permit pay-by-plate toll payment which involves the use of
on-road vehicle license plate identification technology.
There are several ways in which pay-by-plate may work. For
example, a person who uses a toll facility and does not
have a FasTrak account or other automatic vehicle
identification system could telephone or access the website
of a toll operator, enter the license plate number of
his/her vehicle, and pay the toll. Alternatively, a person
may set up a pre-paid account so that tolls are deducted
any time a vehicle uses the toll facility and his/her
license plate number is captured.
Laws and regulations governing the use of personal
information collected by automated systems are limited and
somewhat fragmented. Existing law prohibits any
information obtained through the use of automated devices
from being used for any purpose other than to identify and
obtain the mailing address of toll evasion violators or of
persons entering a toll highway, toll lane, or toll bridge
where pay-by-plate toll payment is permitted by the toll
operator. Additionally, the Bay Area Toll Authority
(BATA), as the toll operator for the seven state-owned toll
bridges that employ FasTrak, is required to give vehicle
owners the option of opening and maintaining an account
with cash or check and without requiring them to provide
their name or address. Finally, most toll operators have
adopted some sort of privacy policy for account holders on
their own accord.
This bill establishes a framework guiding how a
transportation agency may use personally identifiable
information of a person who subscribes to an electronic
toll collection system or uses a facility that employs an
electronic toll collection system. In so doing, this bill:
1. Defines a "transportation agency" as Caltrans, the BATA,
any entity operating a toll bridge, toll lane, or toll
SB 1268
Page
4
highway within the state, or any entity under contract
with any of the above entities.
2. Prohibits a transportation agency from selling or
otherwise providing personally identifiable information
of any person subscribes or uses an electronic toll
collection system.
3. Allows a transportation agency to provide such
information to a law enforcement agency pursuant to a
search warrant, provided the law enforcement agency
immediately notifies, within five days, the person that
his/her records have been obtained and provides a copy
of the search warrant and the identity of the law
enforcement agency or officer to whom the records were
given.
4. Provides that a peace officer may obtain personally
identifiable information when conducting a criminal or
traffic collision investigation without a search warrant
if the officer has good cause to believe that a delay in
obtaining a warrant would cause an adverse result, as
defined.
5. Requires a transportation agency to establish a privacy
policy, post it on their Internet Web site, and provide
it to subscribers in a manner that is conspicuous and
meaningful, such as by providing a copy to the
subscriber, or if the system does not use a collection
mechanism, with the application materials. The privacy
policy shall address the following issues:
A. The type of personally identifiable information
that is collected.
B. The categories of third-party persons with whom
the agency may share the information.
C. The process by which an agency notifies
subscribers of changes to the policy.
D. The effective date of the policy.
E. The process by which a subscriber may review and
SB 1268
Page
5
request changes to any of his/her information.
6. Allows a transportation agency to store personally
identifiable information, such as account name, credit
card number, billing address, vehicle information, and
other basic account information for purposes of billing,
account settlement, or enforcement. All other
information, on and after July 1, 2011, must be
discarded no more than four years and six months after
the closure of the billing cycle or 60 days after the
bill has been paid, and all toll violations, if any,
have been resolved.
7. Requires a transportation agency, on or after July 1,
2011, to "take every effort, within practical business
and cost constraints," to purge personal account
information that is closed or terminated and specifies
that in no case may a transportation agency retain
personal information more than four years and six months
after the date an account is closed or terminated.
8. Establishes a minimum of $2,500 that a person whose
personally identifiable information was knowingly sold
or otherwise provided may receive in damages and costs.
Raises the minimum to $4,000 if three or more violations
occur.
9. Specifies that the bill does not prohibit a
transportation agency from doing the following:
A. Providing aggregated traveler information that
relates to a group or category of subscribers from
which personally identifiable information has been
removed.
B. Providing the license plate number of an
intermodal chassis to the owner of the chassis for
purposes of locating the driver of the chassis in the
event the driver fails to pay the toll.
C. Sharing data with another transportation agency
solely to comply with interoperability specifications
and standards adopted in accordance with existing
law.
SB 1268
Page
6
D. Performing financial and accounting functions such
as billing, account settlement, enforcement, or other
financial activities required to operate and manage
the toll facilities.
E. Communicating about its products and services
offered by itself, a business partner, or the agency
with which it contracts to subscribers of the
transportation agency through a contracted
third-party vendor using personally identifiable
information limited to the subscriber's name,
address, and electronic mail address, provided that,
for customer agreements entered into on or after
January 1, 2011, the transportation agency has
received the subscriber's express written consent to
receive the communication.
10.Specifies that a transportation agency may not use a
nonsubscriber's personally identifiable information
obtained using an electronic toll collection system to
market products or services to that nonsubscriber,
excluding toll-related products or services contained in
a toll evasion notice.
11.Defines "personally identifiable information" as any
information that identifies or describes a person,
including, but not limited to, travel pattern data,
address, telephone number, e-mail address, license plate
number, photograph, bank account information, or credit
card number.
12.Specifies that nothing in items #6 and #7 above
precludes compliance with a court order or settlement
agreement that has been approved on or before April 25,
2010.
13.Allows a transportation agency that employs an
electronic toll collection system to impose an
administrative fee on the persons who use that system in
an amount sufficient to cover the cost of this bill.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SB 1268
Page
7
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2010-11 2011-12 2012-13 Fund
User privacy protections
Prohibits sales/sharing $0 $0 $0
Local*
Retention restrictions Unknown potential costs,
recovered by fees Local*
* Transit authorities
SUPPORT : (Verified 8/23/10)
American Civil Liberties Union
Consumer Action
Consumer Federation of California
Electronic Frontier Foundation
Privacy Rights Clearinghouse
ARGUMENTS IN SUPPORT : According to the author's office,
this bill is intended to protect the privacy of motorists
in California by controlling the use of personal
information that is collected and stored by electronic toll
collection systems (e.g., FasTrak). Examples of personal
information include travel pattern data, location, speed,
time of day, address, telephone number, bank account
information, and credit card numbers.
In addition to facilitating toll payment, FasTrak
transponders are also used to collect traffic information
such as travel times. The signal emitted by a transponder
is detected by sensors or meters that have been placed
along the roadway on certain highway segments. These data
are aggregated and used to provide real-time traffic
information via Caltrans' changeable message signs and
services as the Bay Area's 511.org.
The author's office states that there is a legitimate
concern that information originally collected for purposes
SB 1268
Page
8
of electronic toll collection or the provision of travel
information could be provided to other companies or
organizations for marketing purposes. Existing
restrictions on information sharing and sales vary among
transportation agencies. By codifying the standards
contained in this bill, the author contends the bill will
assure that privacy protections extend to all
transportation agencies that have, or may acquire,
electronic data collection technologies.
ASSEMBLY FLOOR :
AYES: Ammiano, Arambula, Bass, Beall, Block, Blumenfield,
Bradford, Brownley, Buchanan, Caballero, Charles
Calderon, Carter, Chesbro, Conway, Coto, De La Torre, De
Leon, Eng, Evans, Feuer, Fletcher, Fong, Galgiani, Gatto,
Gilmore, Hall, Hayashi, Hernandez, Hill, Huber, Huffman,
Jones, Lieu, Bonnie Lowenthal, Ma, Mendoza, Monning,
Nava, Nestande, Niello, Nielsen, V. Manuel Perez,
Portantino, Ruskin, Salas, Saldana, Skinner, Solorio,
Audra Strickland, Swanson, Torlakson, Torres, Torrico,
Tran, Villines, Yamada, John A. Perez
NOES: Adams, Anderson, Bill Berryhill, Tom Berryhill,
DeVore, Fuller, Gaines, Harkey, Knight, Logue, Miller,
Norby, Smyth
NO VOTE RECORDED: Cook, Davis, Fuentes, Furutani, Garrick,
Hagman, Jeffries, Silva, Vacancy, Vacancy
JJA:mw 8/24/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****