BILL ANALYSIS �
AB 2152
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Date of Hearing: April 29, 2014
ASSEMBLY COMMITTEE ON HIGHER EDUCATION
Das Williams, Chair
AB 2152 (Levine) - As Amended: April 23, 2014
SUBJECT : Public postsecondary education: federal contracts.
SUMMARY : Establishes requirements governing the University of
California (UC), California State University (CSU), the
California Community Colleges (CCC) and private or independent
higher education institutions entering into federal contracts
with federal intelligence agencies. Specifically, this bill :
1)Requires the UC, CSU, CCC, and private or independent
institutions of higher education, and research institutions
managed by or affiliated with those entities, to, prior to
entering into a contract with a federal intelligence agency,
determine whether the proposed contract would involve the
analysis or processing of personally identifiable information,
and if so, it must require the agency to disclose whether the
information was collected with the knowledge of the
individuals to whom it pertains.
2)Provides that institutions must require a proposed contract to
be approved at an open and public meeting of the governing
board of the institution and must disclose the type of
research and information sought by the federal intelligence
agency, if the contract would:
a) Involve the analysis or processing of personally
identifiable information that was collected without the
knowledge of the individuals to whom it pertains;
b) Involve the analysis or processing of disaggregated
personally identifiable information, or de-identified but
re-identifiable information, about individuals;
c) Potentially assist in the analytical processing of
personally identifiable information of individuals; or
d) Assist in the conduct of surveillance activities
performed by, or on behalf of, a federal intelligence
agency.
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3)Requires institutions to disclose, on an annual basis, the
number of contracts with federal intelligence agencies where
the agency sponsoring the contract imposes a limit or
restriction on the publication of the research.
4)Prohibits an institution from entering into a contract with a
federal intelligence agency that imposes limits or
restrictions on the publication of research if the contract
would involve the analysis or processing of personally
identifiable information collected without the knowledge of
the individuals to whom it pertains.
5)Defines "individual" to mean a natural person, regardless of
citizenship.
6)Defines "personally identifiable information" to mean
information that can be used to distinguish or trace an
individual's identity, including, but not limited to, an
individual's name, social security number, or biometric
records, whether alone or when combined with other personal or
identifying information that is linked or linkable to a
specific individual.
EXISTING LAW establishes CCC managed by locally elected
governing boards, with oversight provided by the CCC Board of
Governors. Establishes the UC as a public trust under the
control of the UC Regents, and provides that statutes are
applicable to UC only to the extent that the UC Regents make
such provisions applicable. Confers upon the CSU Trustees the
powers, duties, and functions with respect to the management,
administration, and control of the CSU system.
FISCAL EFFECT : Unknown
COMMENTS : Purpose of this bill . According to the author,
federal intelligence agencies often contract with institutions
of higher education for technical and advanced research; these
same intelligence agencies engage in bulk metadata collection
practices that violate fundamental privacy expectations. Given
the nature of intelligence activities, it is difficult to know
the extent to which a higher education institution in California
is engaged, or has engaged in research that may assist, directly
or indirectly, with the surveillance activities of a federal
intelligence agency. There is currently no accountability or
disclosure process for a California institution seeking to
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engage in intelligence research contracts. Intelligence research
that assists in federal surveillance activities has proven to
push the limits of constitutional privacy protections. The
current lack of accountability provides state lawmakers no
oversight role in potential intelligence activities; this is
especially troubling in the case of public institutions, such as
the UC.
According to the author, this bill is intended to address the
obscure and undisclosed nature of intelligence agency sponsored
contracts by (1) requiring public disclosure when personally
identifiable information is used in research, and (2)
prohibiting contracts that use personally identifiable
information collected without consent when the intelligence
agency places restrictions on the publication of that research.
UC and matters of statewide concern. The California
Constitution (Section 9 of Article IX) establishes UC as a
public trust and confers the full powers of the UC upon the UC
Regents. The Constitution establishes that the UC is subject to
legislative control only to the degree necessary to ensure the
security of its funds and compliance with the terms of its
endowments. Judicial decisions have held that there are three
additional areas in which there may be limited legislative
intrusion into university operations: authority over the
appropriation of state moneys; exercise of the general police
power to provide for the public health, safety and welfare; and,
legislation on matters of general statewide concern not
involving internal university affairs. While potentially
subject to judicial review, arguably, by placing requirements
and prohibitions on research activities conducted at all
California institutions in order to protect the constitutional
right to privacy, this bill addresses a matter of statewide
concern.
The author may wish to establish findings and declarations that
outline the reasons why this legislation addresses a matter of
statewide concern regarding constitutional privacy protections.
UC research and author request for information . UC practice, in
support of academic freedom and faculty publishing rights, is to
refuse to perform classified research on campuses. UC's policy,
however, allows for exceptions to be made in cases involving
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national security interest. Committee staff understands that
the authority to approve an exception to the classified research
prohibition rests with the UC President. In March 2014, the
author wrote to President Napolitano requesting information
regarding the extent to which UC participates in research
contracts that utilizes personally identifiable information.
Committee staff understands that UC is in the process of
reviewing and formally replying to the author's request for
information.
Impact on legitimate private institution research activities .
As drafted, this bill would place reporting requirements and
contract restrictions on both public and private postsecondary
educational institutions. The Association for Independent
California Colleges and Universities (AICCU) has expressed
concerns that it is difficult for their member institutions to
determine in advance of entering a contract whether research may
be indirectly linked to federal government surveillance. AICCU
argues that this bill would make it difficult for member
institutions to conduct any classified research from the
intelligence community because of the impossibility to
predetermine whether personally identifiable information will be
analyzed or processed.
Limitations of enforcement . As drafted, this bill would apply to
higher education institutions in California and research
institutions managed by or affiliated with these institutions.
However, it is unclear how this requirement would be enforced in
cases where the higher education institution does not have
management control over the affiliated research entity. For
example, UC is arguably still "affiliated" with Los Alamos
National Laboratory, but since 2006 has had no direct authority
over operations or contracting decisions.
Related legislation . SB 828 (Lieu and Anderson) would prohibit
the state from providing material support, participation, or
assistance to any federal agency attempting the illegal
unconstitutional collection of electronic data, without consent,
of any person not based on a warrant that particularly describes
the person, place, and thing to be searched or seized, or in
accordance with judicially recognized exceptions to warrant
requirements. SB 828 is scheduled for hearing in the Senate
Public Safety Committee on April 29, 2014.
REGISTERED SUPPORT / OPPOSITION :
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Support
American Civil Liberties Union of California
Opposition
None on file.
Analysis Prepared by : Laura Metune / HIGHER ED. / (916)
319-3960