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 ****