BILL ANALYSIS �
SENATE TRANSPORTATION & HOUSING COMMITTEE BILL NO: SB 1213
SENATOR MARK DESAULNIER, CHAIRMAN AUTHOR: hueso
VERSION: 2/20/14
Analysis by: Erin Riches FISCAL: yes
Hearing date: April 8, 2014
SUBJECT:
Vehicles: enhanced driver's licenses
DESCRIPTION:
This bill authorizes the Department of Motor Vehicles (DMV) to
issue enhanced driver's licenses (EDLs), which individuals can
use at border crossings as proof of both identity and
citizenship.
ANALYSIS:
Existing law authorizes DMV to issue driver's licenses and
identification cards. In order to obtain a driver's license or
identification card, an individual must provide, among other
things, a social security number, verification of birth date and
legal presence in the U.S., and a thumb print. The DMV encodes
the individual's basic personal information in a magnetic strip
on the back of the license or card.
To address the need for increased security measures after the
9/11 terrorist attacks, Congress passed the Intelligence Reform
and Terrorism Prevention Act of 2004 (Public Law 108-458). To
implement this legislation, with an eye to reducing border
congestion, the Department of State and Department of Homeland
Security (DHS) established a plan called the Western Hemisphere
Travel Initiative (WHTI). The WHTI requires U.S. and Canadian
travelers to present a passport or other document proving
identity and citizenship to enter the country beginning in 2007
for air travel into the U.S. and in 2009 for land and sea travel
into the U.S. The EDL is one of the documents meeting WHTI
requirements.
An EDL is a driver's license that an individual can also use as
a travel document to enter the U.S. from Mexico, Canada, the
Caribbean, and Bermuda. A key feature distinguishing an EDL
from a California driver's license is Radio Frequency
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Identification (RFID) technology. RFID systems allow
information contained in a wireless device or "tag" to be read
from a distance. RFID technology can be found in car keys,
security access cards, and highway toll lanes (such as
"FasTrak").
Under WHTI, U.S. Customs and Border Protection (border patrol)
created "ready lanes" at some ports of entry, including Calexico
and Otay Mesa on the California-Mexico border, dedicated to
travelers with RFID-enabled travel documents such as EDLs.
Frequent travelers who hold EDLs can use these ready lanes to
expedite the inspection process. Specifically, as a traveler
approaches inspection lanes at the border, authorized readers
read the EDL from 10 to 15 feet away. The WHTI provides that no
personal information is stored on the EDL, but rather a number
that points to information housed in the secure database. Upon
reading this number, the reader signals the database to display
biographical information, a photo, and the results of
terrorist/criminal checks to the border patrol officer as the
vehicle pulls up to the inspection booth. While the officer
must still conduct a visual inspection, and potentially
interview the driver, he or she does not have to take the time
to collect paper documents and key them in. Four states
(Michigan, New York, Vermont, and Washington), as well as four
Canadian provinces, are currently issuing EDLs.
This bill :
Authorizes DMV to enter into a memorandum of understanding
with a federal agency to obtain approval to issue an EDL,
instruction permit, provisional license, or identification
card (hereafter referred to as EDL) that meets WHTI
requirements.
Authorizes DMV to issue or renew an EDL to an applicant 16
years or older and is both a California resident and a U.S.
citizen.
Requires the applicant for an EDL to sign a declaration
acknowledging his or her understanding of RFID technology.
Requires DMV to include in the EDL reasonable security
measures to protect against unauthorized duplication or
disclosure of the holder's personal information.
Requires an applicant for an EDL to submit proof of identify,
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residency, and citizenship and to certify under penalty of
perjury that the information is valid.
Limits the RFID technology in the EDL to contain only a
randomly assigned number, encrypted subject to DHS approval,
and a barcode that can be read by border patrol.
Requires DMV to notify an applicant that the randomly assigned
RFID number can be read remotely without the holder's
knowledge, especially if the EDL is not enclosed in a
protective shield or similar tamper-resistant device.
Prohibits an employer from requiring an employee to apply for
or use an EDL as a condition of employment or to discharge,
discriminate against, or retaliate against an employee who
refuses to apply for or use an EDL.
Requires an applicant for an EDL to allow DMV to capture or
reproduce his or her photograph and signature at the time of
application or renewal and provides that these items shall
only be available to border patrol or DHS.
Establishes a maximum non-refundable fee of $55 for
application or renewal, in addition to other fees required by
state law, to be deposited in a special account within the
Motor Vehicle Account.
Requires DMV to submit an annual report to the Legislature
including, but not limited to, information on the number of
EDLs and related documents issued, the effect on wait times
and traffic congestion at border points of entry, and whether
or not there have been any security or privacy breaches
related to the use of EDLs or related documents.
COMMENTS:
1.Purpose . The author states that long wait times, as high as
three to four hours, between Imperial County and the Mexican
border accounted for an estimated output loss of $1.4 billion
and 11,600 lost jobs nationally in 2007. In San Ysidro, the
busiest port of entry in the world, 50,000 vehicles and 25,000
pedestrians are processed into the U.S. each day. Congestion
at these ports of entry has led to significant negative
impacts on air quality, neighboring communities, businesses,
tourists, and employees traveling to work. In order to fully
leverage California's economy and improve trade, business, and
tourism, the state needs a modern, efficient, and responsible
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way to expedite the movement of people across the
California-Mexico border. EDLs can greatly reduce wait times
at the border, thereby providing significant economic benefits
to California while strengthening border security.
2.EDLs and RFID technology . An RFID tag with a power source is
an "active" tag that can transmit a radio wave containing
information to any reader in the area. An RFID tag without a
power source is a "passive" tag; a reader can remotely read
the information when the tag gets within a certain range of
the reader. While an RFID tag is similar to bar code
technology, it is different in that it can be read remotely,
without having to swipe the bar code, and in that much more
information can be stored on an RFID tag chip than in a bar
code. The EDL proposed in this bill would include a passive
tag. In addition, as required by WHTI, the bill specifies
that the EDL would contain only a number that points to
information housed in the border patrol's secure database.
3.Privacy concerns . The American Civil Liberties Union (ACLU)
and several other organizations note that the U.S. Department
of Homeland Security has admitted that personal identification
information encoded on the RFID chip be read from up to 30
feet away. They argue that this bill includes no
technological protections in the RFID chip, or in the EDL
document itself, to keep this personal information from being
read without an individual's knowledge or consent. Further,
there is nothing in the EDL as currently designed to prevent
an individual from building similar readers to make
counterfeit EDLs. The organizations state that the EDL as
currently proposed does not have the basic security and
privacy features included in U.S. e-passports. They also note
that California law safeguards the confidentiality of the
driver's license by including the personal information on a
magnetic strip, which can be swiped by businesses but cannot
be read from a distance. Because EDLs could be read from a
distance, an individual, business, or agency could build up a
database about an individual without the person ever knowing
about it.
The author responds that this bill expressly states that the
RFID chips will contain only a randomly assigned number, as
well as encryption and other security measures such as
tamper-resistant features. The author made several amendments
last year to address ACLU concerns, including changing the
word "facial image" to "photograph" to avoid issues relating
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to biometric identification; requiring DMV to inform EDL
applicants that the randomly assigned number can be read
remotely without the individual's knowledge; and expressly
stating that this bill is not intended to conflict with any
other state or federal law.
4.What about AB 60 ? AB 60 (Alejo), Chapter 524, Statutes of
2013, requires DMV to issue a driver's license to an
individual who is ineligible for a social security number if
the individual can provide additional documentation, as
specified. Pursuant to the federal REAL ID Act, the "driving
privilege only" (DP) license cannot be used for identification
purposes, and DMV must obtain approval on the license design
from the DHS before it may begin issuing the new DP license.
An individual does not have to be a U.S. citizen in order to
obtain the DP license, but must be able to establish proof of
identity and of legal presence in the U.S. DMV is currently
in the process of implementing AB 60, and expects to begin
issuing DP licenses in January 2015. The EDL created by this
bill differs from the DP license in that for an EDL, an
individual must be both a California resident and a U.S.
citizen.
RELATED LEGISLATION:
This bill is virtually identical to two prior bills:
SB 397 (Hueso) of 2013, which this committee passed unanimously,
but the Assembly Appropriations Committee held on the suspense
file.
AB 2113 (Hueso) of 2012, which never made it to the Senate
because the Assembly Appropriations Committee held it on the
suspense file. To address numerous privacy concerns raised by
the RFID technology included in the EDL, the author took several
amendments proposed by the Assembly Judiciary Committee. That
language is included in this bill.
POSITIONS: (Communicated to the committee before noon on
Wednesday, April 2,
2014.)
SUPPORT: California Chamber of Commerce
City of San Diego
County of Imperial
Otay Mesa Chamber of Commerce
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OPPOSED: American Civil Liberties Union of California
CaLegislation
Consumer Watchdog
Eagle Forum of California
Privacy Rights Clearinghouse