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  ****