BILL ANALYSIS                                                                                                                                                                                                    




                                                                       


           ------------------------------------------------------------ 
          |SENATE RULES COMMITTEE            |                   SB 909|
          |Office of Senate Floor Analyses   |                         |
          |1020 N Street, Suite 524          |                         |
          |(916) 651-1520         Fax: (916) |                         |
          |327-4478                          |                         |
           ------------------------------------------------------------ 
           
                                         
                                 THIRD READING


          Bill No:  SB 909
          Author:   Wright (D)
          Amended:  5/12/10
          Vote:     21

           
           SENATE JUDICIARY COMMITTEE  :  4-0, 5/4/10
          AYES:  Corbett, Harman, Hancock, Leno
          NO VOTE RECORDED:  Walters


           SUBJECT  :    Investigative consumer reporting agencies:   
          disclosures

           SOURCE  :     Author


           DIGEST  :    This bill requires investigative consumer  
          reporting agencies to disclose, as specified, to a consumer  
          that the consumer's personal information may be sent  
          offshore for the preparation of employment background  
          screening reports.  This bill requires investigative  
          consumer reporting agencies to post a privacy protection  
          policy on their Web site, as specified.  This bill provides  
          consumers with a remedy if they are harmed when their  
          information is sent offshore, as specified. 

           ANALYSIS  :    Existing law regulates the preparation and use  
          of investigative consumer reports.  (Civ. Code Sec. 1786 et  
          seq.)

          Existing law requires that the person seeking an  
          investigative consumer report for employment purposes must  
                                                           CONTINUED






                                                                SB 909
                                                                  
          PageB
          disclose information, as specified, regarding the  
          preparation of the report.  (Civ. Code Sec. 1786.16(2).)
          Existing law requires investigative consumer reporting  
          agencies to maintain procedures designed to avoid  
          violations of Civil Code Section 1786.18 and make  
          certifications as required under Civil Code Section  
          1786.16.  (Civ. Code Sec. 1786.20.)

          Existing law provides the liability structure for an  
          investigative consumer reporting agency or employer that  
          violates the Act.  (Civ. Code Sec. 1786.50.)

          This bill requires the investigative consumer reporting  
          agency subcontracting to an offshore company for the  
          purpose of running an employment background check to  
          disclose to the job applicant the following information:  

          1.The country or countries where the report, or portion  
            thereof, is being prepared or processed;

          2.The specific information about the consumer that is being  
            transmitted or transferred outside of the United States  
            or its territories;

          3.A hyperlink to the investigative consumer reporting  
            agency's privacy protection policy;

          4.Contact information, including a name, mailing address,  
            e-mail address and a telephone number, of a  
            representative of the investigative consumer reporting  
            agency who can assist a consumer who is concerned that  
            his or her information has been compromised as a result  
            of being prepared or processed outside of the Untied  
            States or its territories; and

          5.A description of the appropriate process for remedying a  
            case of identity theft in the jurisdiction where the  
            consumer resides, including the telephone number and  
            mailing address of any agency responsible for consumer  
            protection locally and nationally.

          This bill requires the employer and/or investigative  
          consumer reporting agency to obtain the job applicant's  
          written consent for private information to be sent to an  
          offshore company for the purpose of running an employment  







                                                                SB 909
                                                                  
          PageC
          background check.

          This bill provides that an investigative consumer reporting  
          agency shall be liable to a consumer who is the subject of  
          a report in the event that the consumer is harmed by any  
          act or omission that occurs outside the United States or  
          its territories as a result of the investigative consumer  
          reporting agency preparing or processing an investigative  
          consumer report, or portion thereof, outside of the United  
          States or its territories.

          This bill requires the investigative consumer reporting  
          agency contracting with offshore companies to prepare a  
          privacy policy and conspicuously post it on an Internet Web  
          site, as specified.

          This bill provides that the investigative consumer  
          reporting agency shall not disclose the consumer's social  
          security number, except for the last four digits.

          The provisions of the bill do not apply if the information  
          was stored, processed, or prepared outside of the United  
          States or its territories prior to the date the report was  
          requested, or was sent outside the United States or its  
          territories solely for the purpose of transmitting or  
          storing data.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No    
          Local:  No

           SUPPORT  :   (Verified  5/11/10)

          Concerned CRAs
          Privacy Rights Clearinghouse
          Accucheck Investigations
          Acutraq Information Services
          All Background and People Checks
          Alliance 2020
          AmericanChecked, Inc.
          APSCREEN Applicant Screening Company of America
          Applicant Insight, Inc. 
          Ascertain Screening
          Background Profiles
          Baxter Research, Inc. 
          C3 Intelligence, Inc. 







                                                                SB 909
                                                                  
          PageD
          Data Access, Inc. 
          DDS Inc. Employment Screening Services
          EasyBackgrounds, Inc.
          Edge Information Management, Inc. 
          EmployeeScreenIQ
          Fransco Profiles
          KnowMyHire.com
          National Application Processing and Screening, Inc. 
          PreCheck, Inc. 
          Pre-Employment, Inc. 
          Proforma Screening Solutions
          Verifications, Inc. 

           OPPOSITION  :    (Verified  5/11/10)

          Association of California Life and Health Insurance  
          Companies
          Axicom
          California Chamber of Commerce
          California Retailers Association
          First American Corporation
          Reed Elsevier, Inc 

           ARGUMENTS IN SUPPORT  :    According to the author's office:

               Since AB 655, there has been a significant change that  
               was not anticipated in 2002 - that large players in  
               the screening industry would [undergo] a fundamental  
               shift in business practices and shift their operations  
               off-shore, to locations such as India and the  
               Philippines.  That means that personal and  
               identifiable information (PII) is sent off shore in  
               bulk beyond the protection of the U.S. and California  
               privacy laws to places where data protection and  
               privacy is much more limited, effectively undermining  
               the privacy protections anticipated in 2002.

               This bill is limited to just Investigative Consumer  
               Reporting Agencies.  Although other industries may off  
               shore as well, an Investigative Consumer Report  
               directly impacts the ability of a consumer to obtain  
               employment and earn a livelihood, and therefore a  
               consumer has no choice but to give potential employers  
               PII.  This bill is not anti-off shoring, but is meant  
               to promote privacy and data protection.  It is also a  







                                                                SB 909
                                                                  
          PageE
               disclosure bill and not a regulation bill and  
               therefore has no financial burden on the State of  
               California.  Remedies for violation of this bill would  
               be part of the existing structure for private remedies  
               already contained in California law under Civil Code  
               Section 1786.50.

          Privacy Rights Clearinghouse (PRC), a supporter of the  
          bill, notes that this bill has a very narrow focus and only  
          requires disclosures to California residents when their  
          information is being sent offshore as part of an employment  
          background screening.  According to PRC:

               California has led the way in preventing the misuse of  
               personally identifiable information in order to fight  
               the rising tide of identity theft.  Unfortunately, all  
               protections cease to exist once information leaves the  
               United States.  Many places where information may be  
               sent have very little privacy protection.  In  
               addition, American consumers have virtually no ability  
               to enforce their privacy rights overseas.  In many  
               [countries], there is little access to courts and it  
               is extremely difficult for an American consumer to  
               contact a foreign police department to lodge a  
               complaint or to obtain assistance.  The lack of any  
               meaningful protection once U.S. data is sent offshore  
               is a major gap in [the] effort to combat identity  
               theft and to protect privacy.

           ARGUMENTS IN OPPOSITION  :    Opponents of the bill argue  
          that the disclosure language required by this bill "creates  
          the false threat that the individual's personal information  
          is somehow jeopardized, if an investigative report is  
          prepared, stored or processed outside of the United States"  
          and will limit the employer's ability to conduct an  
          employment screening.  

          Opponent LexisNexis argues that "prudent employers seeking  
          to conduct background checks on potential employees may  
          avoid hiring in California altogether and look to other  
          states for qualified employees, rather than risk running  
          afoul of SB 909's provisions."

          Another argument by LexisNexis is that this bill "sends the  
          wrong protectionist message to countries doing business in  







                                                                SB 909
                                                                  
          PageF
          California?.  [T]his legislation regards California's  
          international trade partners with suspicion and distrust."   


          RJG:nl  5/12/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

                                ****  END  ****