BILL ANALYSIS
SB 362
Page 1
Date of Hearing: June 19, 2007
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
SB 362 (Simitian) - As Amended: April 24, 2007
SENATE VOTE : 25-11
SUBJECT : Identification Devices: Subcutaneous Implanting
KEY ISSUES :
1)Should it be unlawful for a person to require, coerce, or
compel any other person to undergo the subcutaneous
implantation of an identification device that transmits
personal information by radio waves or other means?
2)Should "ANY INTERESTED PARTY" be permitted to file a petition
declaring a minor or incompetent free from the control of a
parent or guardian for purposes of implantation?
3)Are there circumstances, medical or otherwise, under which a
parent or guardian might reasonably consent to the
implantation of a subcutaneous device for a minor child or
dependent adult?
SYNOPSIS
This bill is one of several that the author has introduced this
legislative session to prohibit, limit, or regulate the use of
RFID technology in various contexts. RFID, and related "remote
readable" technologies, permit information stored on an RFID
"tag" to be read by a remote reading device. Most agree that
this technology has many promising commercial uses, but when it
is used for purposes of human identification it raises a number
of potentially troubling privacy concerns. Although thus far
RFID has been limited to tracking material inventory or used in
identification badges that allow persons access to buildings or
other restricted places, one company has developed a chip that
can be planted under the human skin. The primary purpose behind
the development of this implantable chip is to provide emergency
medical personnel with critical medical histories for patients,
such as persons who suffer from Alzheimer's who might not be
able to provide reliable medical information to medical staff in
an emergency. Nonetheless, it does not take much imagination to
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envision uses of an implant that are not so benign. This bill
would provide that no person could require, coerce, or compel
another person to undergo an implantation of any identification
device that, like RFID, transmits personal information remotely.
There is no opposition to this bill. However, one provision in
this bill would permit "any interested party" to file a petition
to free a "minor or incompetent" from the control of a parent or
guardian for purposes of implantation. The Committee may wish
to consider whether this provision goes too far in interfering
with well-established statutory and case law in this area. The
analysis recommends deleting the provisions relating to
terminating parental control and adding a provision expressly
stating that nothing in this bill will alter existing law
concerning the rights of parents and guardians, on the one hand,
and their minor children and adult dependents, on the other
hand. It also recommends other corresponding changes that would
serve this same end.
SUMMARY : Prohibits a person from requiring, coercing, or
compelling another person to undergo a subcutaneous (under the
skin) implant of an identification device that transmits
personal information. Specifically, this bill :
1)Provides that a person shall not require, coerce, or compel
any other individual to undergo the subcutaneous implanting of
an identification device. Defines "require, coerce, or
compel" to include physical violence, threat, intimidation,
retaliation, the conditioning of any private or public benefit
or care on consent to implantation, including employment,
promotion, or employment benefit, or by any means that causes
a reasonable person of ordinary susceptibilities to acquiesce
to implantation when he or she would not otherwise do so.
Exempts from this definition instances in which a patient or
his or her guardian or parent consents to implantation for
legitimate medical uses.
2)Defines an "identification device" as any item, device,
application, or product that is passively or actively capable
of transmitting personal information, including, but not
limited to, devices using radio frequency technology.
3)Provides that any person who violates the above provision may
be assessed an initial civil penalty of up to $10,000 and
$1000 for each day that the implant remains in place.
Provides further that a person who is implanted with a
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subcutaneous device in violation of this bill may, subject to
appropriate statute of limitations, bring a civil action for
actual damages, compensatory damages, punitive damages,
injunctive relief, or any appropriate combination thereof.
4)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.
5)Specifies that provisions of this bill shall be liberally
construed so as to protect privacy and bodily integrity.
EXISTING LAW :
1)Grants to all persons within this state a constitutional right
to privacy and, unlike the federal constitution, protects the
right to privacy from both state action and private entities.
(Cal. Const., Art. I, Sec. 1; Hill v. Nat'l Collegiate
Athletic Assn (1994) 7 Cal. 4th 1.)
2)Specifies the circumstances under which a minor child may be
declared free from parental control and the subsequent
procedures of terminating parental rights and responsibilities
with regard to that child. Specifies further the procedures
by which a petition may be filed with the court for the
purpose of declaring a child free from the custody and control
of either or both parents. (Family Code Sections 7800 through
7895.) Provides, however, that the termination of parental
rights is a drastic remedy to be resorted to only in extreme
cases. (In Re Baby Girl M. (2006) 135 Cal. App. 4th 1528,
review denied) (interpreting Family Code Section 7820.)
3)Provides that the abuse of parental authority is the subject
of judicial cognizance in a civil action brought by the child,
or by the child's relative within the third degree, or by the
supervisors of the county wherein the child resides. (Family
Code Section 7507.)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : This bill is one of several bills introduced by this
author, and before this Committee, that seek to prohibit, limit,
or regulate the use of RFID technology in various contexts.
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This bill would prohibit any person from requiring, coercing, or
compelling any other person to undergo a subcutaneous implant of
any device that transmits that person's personal information
remotely. Although the language of this bill specifically
references RFID devices, it is apparently meant to apply to the
implantation of any device that transmits personal information,
whether by radio waves or otherwise.
According to author, this bill is needed because subcutaneous
"RFID-enabled identification devices have been developed and are
being marketed in the U.S. and abroad." One company, VeriChip
Corporation, has already received approval from the U.S. Food
and Drug Administration (FDA) for human use (such devices can
already be implanted in pets.) Even VeriChip, as the author
points out, has indicated its general support for measures that
will prevent the forced implantation of such technology in human
beings.
In order to ensure that such implants will only take place if
consented to by an adult acting free of any undue influence, the
author has introduced this bill. This bill would provide that
no person may "require, coerce, or compel" another person to
undergo a subcutaneous implant of an RFID device or any other
identification device that transmits personal information. The
bill defines "require, coerce, or compel" to mean not only using
physical force, but also using other forms of intimidation or
coercion, such as making acquiescence to an implant a condition
of employment or some private or public benefit. In short, this
bill prohibits using any means that would cause a reasonable
person of ordinary sensibilities to consent to an implantation
when he or she would not do so otherwise. The bill would exempt
instances in which a patient or his or her guardian consents to
implantation for "legitimate medical uses."
Background: What is RFID and How Does it Work ? Despite the
jargon-laden language sometimes used by both proponents and
opponents, the basic outline of how RFID and related
technologies works is fairly easy to understand. RFID "tags"
can be embedded into objects, including documents, clothing,
and, of course, under people's skin. The tag typically consists
of a microchip (that stores information) and one or more
antennae. Remote "readers" can read this tag via radio waves.
The reader constantly emits radio signals. As a person or
object with an RFID tag moves near the reader - the distance
varies depending upon the device - the antennae pick up the
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signal and transmit the information stored on the microchip to
the reader. (Some RFID tags are "passive," which means that
they can only be activated by the radio signal; others are
"active," which means that they can actively search out readers
in the area.) The reader then can transmit this information to
a computer database.
In some ways, RFID technology is merely a higher-tech version of
bar code and magnetic strip scanning. However, scanning
requires direct contact between the scanner and the stored
information (or at least the magnetic strip or barcode must be
in the direct line of sight of a laser). RFID readers, on the
other hand, can read the information stored on the RFID tag
remotely. With existing technology, the reader's capacity may
only be about an inch or several feet. Experts disagree on the
potential range of RFID readers in the future. But most agree
that the current technology typically only works at ranges of a
few inches, though some devices may have ranges up to thirty
feet. However, the fact that RFID tags can be read at any
distance creates the possibility that information stored on an
identification document, or a chip buried beneath the skin, can
be read without the holder's knowledge or consent.
A key issue that divides experts on both sides of the debate,
however, concerns the nature of the information stored on the
RFID device, and the usefulness of that information to any
unauthorized reader. Sometimes an RFID tag only contains a
random number that has no meaning until the reader transmits it
to a computer database, where the random number is then matched
to other information. However, RFID tags apparently can contain
other information, such as a name, address, a credit card
number, or even a visual image. Experts on both sides of the
debate disagree about the value of "encryption" or other
security measures that make stored information intelligible only
to authorized readers. Moreover, privacy advocates point out
that security measures must address more than the ability of the
reader to access intelligible information from the tag; they
must also address potential security breaches along the entire
transmission process from tag, to reader, to computer database.
Proponents of RFID, on the other hand, claim that RFID
applications are confined to a closed system of authorized tags,
readers, and databases within that system. So that even if
outsiders with remote readers obtained information from an RFID
tag, that information is only intelligible to persons within the
system. (The above summary of RFID technology, and the contours
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of the debate of privacy and security issues, is based, in part,
on a host of documents representing the opinions of privacy
rights and consumer groups, industry representatives, and
government agencies. See for example
www.privacyrights.org/are/RFIDposition.htm .)
Human Implanting of RFID and Other Identification Devices : Thus
far, RFID technology has only been used in identification cards
or to track inventory. However, VeriChip Corporation recently
received FDA approval for an RFID device that can be implanted
subcutaneously (i.e. beneath the skin). According to documents
filed by VeriChip with the U.S. Securities and Exchange
Commission, its implantable microchip is part of its broader
"VeriMed System." Although VeriChip suggested that the chip
could potentially have diverse applications, it would primarily
be of use to emergency room personnel and other medical first
responders for accessing the medical histories of certain
incommunicative patients. For example, the chip might be
appropriate for a person with special but not readily apparent
medical needs, or for a person who suffered from some form of
dementia and could not be relied upon to provide reliable
information to medical personnel.
Despite these potentially life-saving uses, few would disagree
that forcing an individual to undergo a subcutaneous implant of
any identification device so violates common sense notions of
personal privacy and bodily integrity that it should not be
permitted. Indeed, to the extent that this bill makes it
unlawful to physically force another person to undergo an
implant against his or her will, it is undoubtedly duplicative
of the existing law of criminal and civil battery. However, the
bill would sensibly go beyond this existing law by prohibiting
and making actionable lesser forms of coercion, such as
conditioning employment or some other benefit on the willingness
to undergo a subcutaneous implant. Not surprisingly, there is
no formal opposition to the bill on this point. As noted above,
even the manufacturer has publicly acknowledged that
implantation should only be voluntary.
The Question of Parental Rights : While the overall purpose of
this bill seems laudable and sensible, which is presumably why
no one opposes it, there are provisions of this bill that
potentially - and unnecessarily the Committee believes -
interfere with parental rights in ways that the author may not
have intended. Indeed, two provisions in this bill raise
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substantial questions about the appropriate balance between
parental rights and the best interests of a child. The
Committee may wish to discuss these issues with the author and
consider the following questions and proposed amendments.
Parental Rights Issue #1: Should a parent or guardian ever be
permitted to allow implantation in his or her child for
non-medical uses? Under this bill, any parent who allows or
facilitates his or her child to undergo an implantation for any
reason other than "legitimate medical uses" would violate the
provisions of this bill and be subject to an initial civil
penalty of up to $10,000 and an additional $1000 per day until
the implant is removed. As currently drafted, this bill
provides that no person shall "require, coerce, or compel" any
other person to undergo an implant; it then defines "require,
coerce, or compel" to exclude implantation for medical uses for
which the patient "or his or her guardian" has consented. Under
standard rules of statutory construction, the expression of one
thing implies the exclusion of another. This would mean that,
under this bill, a parent or guardian who consented to an
implant for his or her child for any reason other than a
"legitimate medical use" (which is not defined) would have
violated the provisions of this bill. Exempting medical uses
seems manifestly reasonable, but the Committee may wish to
consider with the author whether there are other non-medical
uses for which a parent should reasonably be permitted as a
matter of parental autonomy to consent to having a chip
implanted in his or her child (e.g., for avoidance of kidnapping
or other safety-related issues.).
Parental Rights Issue # 2: Does the provision permitting "any
interested party" to file a petition declaring a minor "free
from the control of a parent or guardian" for purposes of the
implantation impose too great an infringement upon parental
rights? Even a parent who approves an implant for a legitimate
medical use could apparently be subject to a petition seeking to
declare a child free from parental control for purposes of the
implantation. Proposed subdivision (a) provides that anyone who
requires, coerces, or compels another to undergo an implant can
be subject to a civil penalty and possible actions for damages.
Proposed subdivision (d), on the other hand, provides that for
purposes of implantation, "any interested party may file a
petition for an order or judgment declaring an incompetent or
minor free from the control of a parent or guardian." (The
author's staff has indicated to the Committee that the bill
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could and should be amended to narrow the meaning of "any
interested party" to a parent, guardian, physician, or
attorney.)
Subdivision (d) apparently seeks to create a new form of action,
seemingly apart from the civil penalties and private actions
provided for in subdivisions (a) and (b), respectively.
Existing law creates proceedings for freeing a child from
parental custody and control (Family Code Sections 7800-7895).
However, existing law allows such proceedings to be brought only
for reasons such as child abandonment, cruelty, or neglect, or
where the parent is found to suffer a physical or mental
incapacity due to mental illness, developmental disability, or
substance abuse. Existing law also sets out the reasons and
procedures for declaring a minor child a dependent of the court
and, if necessary, for terminating parental rights of a child so
declared. (Welfare & Institutions Code Sections 300, 360, and
366.26.) But again this only applies to serious abuse and
neglect. Moreover, these procedures typically provide for the
permanent termination of parental rights and control, subject
albeit to complex procedures for establishing reunification and
the restoration of parental rights. This bill, however, would
apparently allow an interested party to file a petition to free
a child from parental control relative to a single decision,
where there is no evidence that the parent is otherwise unfit
for the duties of parenthood.
Existing law already provides that abuse of parental authority
is subject to judicial cognizance in a civil action brought by a
child, appropriate representative of the child, or other
interested party. (Family Code Sections 7507, 7840-7841.)
Finally, well-established case law establishes principles to
guide the court's efforts to balance the competing rights and
interests of parents and guardians, on the one hand, and the
rights and interests of minor children and dependent adults, on
the other hand. [Compare In re Baby Girl M. (2006) 135 Cal. App.
4th 1528 (holding that termination of parental rights is a
drastic measure only to be resorted to in extreme cases) with
Neumann v. Melgar (2004) 121 Cal. App. 4th 152 (holding that the
bests interests of the child are paramount in interpreting and
implementing the statutory scheme for termination of parental
rights).] In short, existing law provides avenues for
challenging decisions made on behalf of children and dependents,
subject to judicial determinations for balancing parental rights
with the best interest of a child. The Committee may wish to
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consider whether this bill properly, or improperly, interferes
with existing statutory and case law.
In light of these issues, the Committee may wish to consider the
following amendments .
Possible Amendment 1 : Delete subdivision (d) in its entirety.
Rationale : As noted above, this subdivision allows an
interested party to petition the court for an order freeing a
minor or incompetent from the control of a parent or guardian.
While it is not entirely unprecedented to free a child from
parental control for a single medical procedure (e.g. abortion
under certain, highly proscribed circumstances) it is highly
unusual. Courts usually only take the serious step of
interfering with parental control of a minor where a parent
poses a serious ongoing or irreversible threat to a child's
safety and well-being. An implantation is not irreversible, and
would not necessarily rise to the level of neglect and abuse
that the courts find sufficient to terminate parental rights.
Finally, even if this procedure is not done for a "medical use,"
it is nonetheless a medical procedure. Existing law already sets
out the parameters and limitations relating to the power of a
parent or guardian to consent to medical decisions on behalf of
a child or dependent. [See e.g. Family Code Sections 6550,
6910-6929; see also Health & Safety Code Section 1234500
(permitting a minor child to obtain an abortion without parental
consent if the minor is deemed sufficiently mature and/or other
specified conditions are met.)]
Possible Amendment 2 : On page 5, delete lines 16-17 which
exempt a parent or guardian who consents to implantation for a
"legitimate medical use" from the definition of "require,
coerce, or compel" for purposes of subdivision (a).
Rationale : While the Committee may agree that legitimate
medical uses should be exempted, adding this exemption
expressly, for the reasons discussed above, would imply that a
parent or guardian who consents to an implant for any reason
other than a legitimate medical use would constitute a violation
of subdivision (a). However, the Committee might conclude that
there are instances in which a parent or guardian could
reasonably consent to the implantation of such a device for a
non-medical reason.
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Possible Amendment 3 : After the definitional section at the end
of the bill, add a new subdivision (i) which states:
"(i) This section shall not in any way modify existing statutory
or case law regarding the rights of parents or guardians, the
rights of children or minors, or the rights of dependent
adults."
Rationale : The Committee might conclude that this section would
make it clear that nothing in this bill interferes with existing
law governing the relationship between parents and children and
their respective rights (or between guardians and dependents and
their respective rights.) This does not mean that a court could
never intervene to prevent a parent from forcing a child to
undergo an implant; it simply makes it clear that if it does, it
will do so in a manner that conforms to existing statutory and
case law.
Possible Amendment 4 : As a technical and conforming change, on
p. 2, line 2 after "(a)" Insert: "Except as provided in
subdivision (i)"
Possible Amendment 5 : Change relevant parts of this bill
throughout to delete "incompetent" and replace with "dependent
adult," which the Committee believes is a more applicable legal
term of art.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union
California Alliance for Consumer Protection
California Commission on the Status of Women
Consumer Action
Consumer Federation of California
Gun Owners of California
Privacy Rights Clearinghouse
Protection and Advocacy, Inc.
State Building and Construction Trades Council
Opposition
None on file
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Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334