BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 249| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: SB 249 Author: Hueso (D) Amended: 4/30/15 Vote: 21 SENATE TRANS. & HOUSING COMMITTEE: 11-0, 4/7/15 AYES: Beall, Cannella, Allen, Bates, Gaines, Galgiani, Leyva, McGuire, Mendoza, Roth, Wieckowski SENATE JUDICIARY COMMITTEE: 5-2, 4/21/15 AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski NOES: Moorlach, Anderson SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/28/15 AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen SUBJECT: Vehicles: enhanced drivers licenseVehicles: enhanced drivers license. SOURCE: Author DIGEST: 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 federal law: 1) Establishes the Intelligence Reform and Terrorist SB 249 Page 2 Prevention Act of 2004 (Public Law 108-458). This act was intended to address the need for increased security measures after the 9/11 terrorist attacks. To implement this legislation, with an eye to reducing border congestion, the Department of State and the 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. 2) Establishes the EDL as 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 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). 3) Establishes, under the WHTI, "ready lanes" at some U.S. Customs and Border Protection (border patrol) ports of entry, including Calexico East, Otay Mesa, and San Ysidro on the California-Mexico border. Ready lanes are dedicated to travelers with RFID-enabled travel documents, such as EDLs. Frequent travelers who hold EDLs can use these 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. 4) Provides that no personal information is stored on the EDL, only 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 several Canadian SB 249 Page 3 provinces, are currently issuing EDLs. Existing state law: 1) 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. DMV encodes the individual's basic personal information in a magnetic strip on the back of the license or identification card. 2) Prohibits the DMV, unless requested by the licensee, from distributing or selling the licensee's photograph or any information pertaining to the licensee's physical characteristics to any private individual, other than the licensee, or to any firm, co-partnership, association, or corporation. That prohibition does not apply to any private business entity that contracts with DMV for the production of driver's licenses and identification cards, if the contract prohibits unauthorized use and disclosure of the information. 3) Provides that a person or entity that intentionally remotely reads or attempts to remotely read a person's identification document, including a driver's license or identification card, using radio frequency identification technology (RFID), without that person's knowledge and prior consent, shall be punished by imprisonment. Further, a person or entity that knowingly discloses, or causes to be disclosed, the operational system keys used in a contactless identification document system shall be punished by imprisonment in a county jail for up to one year, a fine of not more than $1,500, or both. This bill: 1) 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 generally as an EDL) that meets WHTI requirements. Authorizes the DMV to issue or renew an EDL to an applicant who is 16 years or older and is both a SB 249 Page 4 California resident and a U.S. citizen. 2) Requires an applicant to submit proof of identity, California residency, and U.S. citizenship and to certify under penalty of perjury that the information is valid. Also requires the applicant to sign a declaration acknowledging his or her understanding of RFID technology. 3) Requires DMV to inform the applicant in writing that the randomly assigned RFID number can be read remotely without the holder's knowledge, if the EDL is not enclosed in a protective shield or similar tamper-resistant device. 4) Requires DMV to include in the EDL reasonable security measures to protect against unauthorized duplication or disclosure of the holder's personal information. Limits the RFID technology in the EDL to contain only a randomly assigned number, encrypted subject to DHS approval, and a bar code that can only be read by border patrol. 5) 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. 6) Authorizes an employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated or retaliated against in relation to an EDL to file a complaint with the Department of Industrial Relations' Division of Labor Standards within one year. 7) Requires an applicant to allow DMV to capture and 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. 8) Requires DMV to verify the validity of an EDL application or renewal and accompanying proof. Authorizes DMV to require the applicant to submit additional information to establish identity, residency, and citizenship. Authorizes DMV to deny an application if it finds the application or supporting documentation is inadequate or invalid. 9) Establishes a non-refundable fee of $55 for application or SB 249 Page 5 renewal, in addition to other fees required by state law, to be deposited in a special account within the Motor Vehicle Account. 10) Specifies that this bill is not intended to conflict with any other state or federal law. 11) 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 ports of entry, and whether or not there have been security or privacy breaches related to the use of EDLs or related documents. Comments Purpose. The author states that each year, 45 million vehicle passengers and 15 million pedestrians cross the border into California through the six ports of entry from Mexico. Long wait times, as high as three to four hours, between Imperial County and the Mexico border accounted for an estimated output loss of $1.4 billion and 11,600 jobs lost nationally in 2007. More recent studies indicate a $620 million loss due to congestion at the Imperial County ports of entry and a nearly $1.3 billion revenue loss at the San Diego ports of entry. The author states that the EDL could both significantly reduce wait times at the border and strengthen border security. EDLs and RFID technology. An RFID tag with a power source is an "active" tag that can transmit a radio wave transmitting information to any reader in the area. An RFID 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 differs 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 on a bar code. The EDL proposed in this bill would include a passive tag. In addition, as required by the WHTI, this bill specifies that the EDL would contain only a number that points to information housed in the border patrol's secure database. What about AB 60? AB 60 (Alejo, Chapter 524, Statutes of 2013) requires the DMV to issue an original driver's license to an SB 249 Page 6 individual who is unable to submit satisfactory proof of legal presence in the U.S. These applicants must meet all other qualifications for licensure and must provide satisfactory proof of identity and California residency. AB 60 specifies that a license issued under these provisions is valid only for driving privileges and cannot be used for identification or federal purposes. The DMV began issuing these licenses on January 2, 2015. Because this bill requires that an individual must be a U.S. citizen in order to obtain an EDL, individuals holding an AB 60 driver's license would not be eligible. Prior legislation. SB 397 (Hueso), which the Senate Transportation and Housing Committee passed on an 11-0 vote in 2013 but the Assembly Appropriations Committee subsequently held on the suspense file, was almost identical to this bill. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: Yes According to the Senate Appropriations Committee: Initial DMV costs of approximately $4.37 million (Motor Vehicle Account) over several fiscal years, to the extent DMV implements a program to issue EDLs. These costs must be incurred prior to collecting application fee revenues. Ongoing DMV costs of approximately $641,000 in 2019-20, $1.28 million in 2021-22, and $1.22 million annually thereafter to handle increased workload for Investigations and Privacy staff and in field offices (Enhanced Driver's License and Identification Subaccount, created by this bill). Unknown revenue increases, beginning in 2019-20. If DMV set the fee at the maximum of $55, it is estimated that implementation and ongoing costs would be fully funded during the 2021-2022 fiscal year. (Enhanced Driver's License and Identification Subaccount). Unknown workload costs to the Division of Labor Standards Enforcement to handle any discrimination or retaliation complaints against employers. (Labor Enforcement Compliance Fund). SB 249 Page 7 SUPPORT: (Verified5/28/15) Baja California State Government Calexico Chamber of Commerce California Chamber of Commerce Casa Familiar City of San Diego El Centro Chamber of Commerce Imperial County Transportation Commission Mayor of Chula Vista Otay Mesa Chamber of Commerce San Diego Association of Governments San Diego Regional Chamber Smart Border Coalition Two individuals OPPOSITION: (Verified5/28/15) American Civil Liberties Union ARGUMENTS IN SUPPORT: The California Chamber of Commerce (Cal Chamber) states that border delays result in the loss of eight million trips each year. In the San Diego region alone, this results in an estimated loss of $1.2 billion in revenues. Cal Chamber states that by reducing border wait times, this bill will promote economic growth through the increased movement of both travelers and consumers. ARGUMENTS IN OPPOSITION: The American Civil Liberties Union (ACLU) states that it has "profound privacy and security concerns about the use of insecure Radio Frequency Identity (RFID) computer chips in EDL identity documents." Writing in opposition to the prior version of this bill, the ACLU argued that RFID chips in EDLs are not as secure as those used in passports, which use a different identifying number each time the passport is used. The ACLU argued that RFIDs can transmit the holder's identifying number, which is not encrypted, up to 30 feet, which potentially compromises the SB 249 Page 8 holder's personally identifying information associated with that number. Although this bill was amended in the Senate Judiciary Committee to require DMV to inform the applicant in writing that the randomly assigned RFID number can be read remotely without the holder's knowledge, if the EDL is not enclosed in a protective shield or similar tamper-resistant device, the ACLU is still opposed to this bill. Prepared by:Erin Riches / T. & H. / (916) 651-4121 5/31/15 13:09:37 **** END ****