BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 362|
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THIRD READING
Bill No: SB 362
Author: Simitian (D)
Amended: 4/24/07
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-2, 4/10/07
AYES: Corbett, Kuehl, Steinberg
NOES: Harman, Ackerman
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SUBJECT : Identification devices: subcutaneous
implanting
SOURCE : Author
DIGEST : This bill prohibits a person from requiring,
coercing, or compelling any other individual to undergo the
subcutaneous implanting of an identification device, as
defined. The bill provides for the assessment of civil
penalties for a violation thereof, as specified, and allows
an aggrieved party to bring an action against a violator
for damages and injunctive relief, subject to a three-year
statute of limitation, or as otherwise provided. The bill
also allows an interested party to petition the court on
behalf of an incompetent or minor upon specified
circumstances.
ANALYSIS : Existing law provides that all people in this
state have an inalienable, constitutional right to privacy.
CONTINUED
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Existing law provides that every person has, subject to
qualifications and restrictions provided by law, the right
of protection from bodily restraint or harm, from personal
insult, from defamation, and from injury to personal
relations.
This bill prohibits a person from requiring, coercing, or
compelling any other individual to undergo the subcutaneous
implanting of an identification device.
This bill provides that:
1.Any person who violates or threatens to violate its
provisions may be enjoined in any court of competent
jurisdiction.
2.Any person found in a civil action to have violated its
provisions may be assessed an initial civil penalty of no
more than $10,000, and no more than 41,000 for each day
the violation continues until the deficiency is
corrected.
3.The court may award a prevailing plaintiff reasonable
attorney's fees and litigation costs, including expert
witness fees and expenses as part of the costs.
This bill provides that a person who is implanted with a
subcutaneous identification device by being coerced or
compelled may bring a civil action for actual damages,
compensatory damages, punitive damages, injunctive relief,
any combination of those, or any other appropriate relief.
Additionally, punitive damages may also be awarded upon
proof of the defendant's malice, oppression, fraud, or
duress in requiring, coercing, or compelling the plaintiff
to undergo the subcutaneous implanting of an identification
device.
This bill provides that an action brought under this bill's
provisions shall be commenced within three years of the
date upon which the identification device was implanted.
If the victim was an incompetent or minor when the
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implantation occurred, actions brought pursuant to this
bill shall be commenced within three years after the date
the plaintiff, or his or her guardian or parent, discovered
or reasonably should have discovered the implant, or within
eight years after the plaintiff attains the age of
majority, whichever date occurs later.
The statute of limitations shall not run against an
incompetent or minor plaintiff simply because a guardian ad
litem has been appointed. A guardian ad litem's failure to
bring a plaintiff's action within the applicable limitation
period will not prejudice the plaintiff's right to do so.
A defendant is stopped to assert a defense of the statute
of limitations when the expiration of the statute is due to
conduct by the defendant inducing the plaintiff to delay
the filing of the action, or due to threats made by the
defendant causing duress upon the plaintiff.
The bill provides that for purposes of implantation only,
any interested person may file a petition for an order or
judgment declaring an incompetent or minor free from the
control of a parent or guardian who is requiring or
preventing implantation of an identification device.
This bill requires the court to consider that petition in
light of applicable law with respect to the best interests
of the incompetent or minor.
Any restitution paid by the defendant to the victim shall
be credited against any judgment, award, or settlement
obtained pursuant to this bill. Any judgment, award, or
settlement obtained pursuant to an action under this bill
shall be subject to the provisions of Section 13693 of the
Government Code.
The bill specifies that the provisions of this bill shall
be liberally construed so as to protect privacy and bodily
integrity.
The bill provides that actions brought pursuant to this
section are independent of any other actions, remedies, or
procedures that may be available to an aggrieved party
pursuant to any other law.
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For purposes of this bill:
1."Identification device" means any item, application, or
product that is passively or actively capable of
transmitting personal information, including, but not
limited to, devices using radio frequency technology.
2."Person" means an individual, business association,
partnership, limited partnership, corporation, limited
liability company, trust, estate, cooperative
association, or other entity.
3."Personal information" includes any of the following data
elements to the extent they are used alone or in
conjunction with any other information used to identify
an individual:
A. First or last name.
B. Address.
C. Telephone number.
D. E-mail, Internet protocol, or web site address.
E. Date of birth.
F. Driver's license number or California
identification card number.
G. Any unique personal identifier number contained or
encoded on a driver's license or identification card
issued pursuant to Section 13000 of the Vehicle Code.
H. Bank, credit card, or other financial institution
account number.
I. Any unique personal identifier contained or
encoded on a health insurance, health benefit, or
benefit card or record issued in conjunction with any
government-supported aid program.
J. Religion.
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K. Ethnicity or nationality.
L. Photograph.
M. Fingerprint or other biometric identifier.
N. Social security number.
O. Any unique personal identifier.
4."Require, coerce, or compel" includes physical violence,
threat, intimidation, retaliation, the conditioning of
any private or public benefit or care on consent to
implantation, including employment, promotion, or other
employment benefit, or by any means that causes a
reasonable person of ordinary susceptibilities to
acquiesce to implantation when he or she otherwise would
not, but does not include legitimate medical uses for
which the patient or his or her guardian or parent has
consented.
5."Subcutaneous" means existing, performed, or introduced
under or on the skin.
RFID Defined
As stated in the Department of Homeland Security's Data
Privacy and Integrity Advisory Committee's report on The
use of RFID for Human Identity Verification:
RFID is a type of automatic identification technology
that enables the user to "tag" objects with a tiny
device that can later be detected by automatic means.
That detection can range from simply noting the
presence of the device to obtaining a fixed
identification number from the device, to initiating a
two-way communication with the device. The essential
functionality of the system is that when the tag is in
the presence of an appropriate radio frequency (RF)
signal emanated by a reader, the tag responds by
sending back a reflected RF signal with information in
response. Some can only operate over a very short
distance of a few centimeters or less, while others may
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operate at longer distances of several meters or more.
At the higher-end of RFID technology, the contactless
RFID tags have been enhanced with the full capabilities
of smart card chips that contain general-purpose
computer processors and large non-volatile memory
spaces?.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 4/30/07)
Privacy Rights Clearinghouse
California Alliance for Consumer Protection
Consumer Federation of California
Protection and Advocacy, Inc.
American Civil Liberties Union
Gun Owners of California
Consumer Action
ARGUMENTS IN SUPPORT : The author's office writes,
"Subdermal RFID-enabled ID devices have been developed and
are currently being marketed in the U.S. and abroad -
VeriChip Corporation, which went public on Feb. 9, 2007,
and has the only FDA-approved human implantable RFID
system, acknowledged in its prospectus its intent to
develop human implantation markets and expects these to be
major future revenue sources.
"Privacy and security risks - RFID systems can be
comprised, many in seconds, which exposes device holders to
identify theft, property theft, surveillance, stalking and
tracking, and other serious harm.
"No limits, no protections - There are no legal limits on
the type of information that can be stored on an RFID tag;
and there are no laws establishing minimum security
protections for the information that tags contain. Thus,
nothing prevents an employer or public entity from forcing
a person to carry or implant a RFID tag that may broadcast
the person's race, religion, employer, or home address to
anyone with an inexpensive RFID reader.
"Healthcare and other costs - Subdermal RFID is a new RFID
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application. Its long-term health effects and related
costs are unknown. Even assuming subdermal applications
prove safe, who will pay healthcare costs related to
insertion and/or removal? In the event of a device recall,
employment termination, technological obsolescence, or
identity theft, who pays?
"Incentive matters - A 2006 Department of Homeland Security
privacy committee report notes that efficiencies from
RFID-enabled IDs are limited due to the need for staff to
confirm the holder is who they say they are. This problem
could be addressed by subdermal implantation, which could
thereby provide a powerful incentive for such implantation.
"Wisconsin has enacted a law to prohibit forced
implantation of ID devices. California law does not
currently explicitly prohibit such forced implantation of
ID devices, though certainly such conduct would constitute
a battery, actionable under tort law. This bill would
provide a clear statutory prohibition on forced
implantation of an ID device."
RJF:cm 4/30/07 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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