Legislature(2011 - 2012)BELTZ 105 (TSBldg)
04/06/2011 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB30 | |
| SB104 | |
| SB98 | |
| SB86 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 86 | TELECONFERENCED | |
| + | SB 104 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 30 | ||
| = | SB 98 | ||
SB 98-BIOMETRIC INFORMATION FOR ID
1:53:56 PM
CHAIR FRENCH announced the consideration of SB 98 and asked for
a motion to adopt the proposed committee substitute (CS).
SENATOR WIELECHOWSKI, sponsor of SB 98, moved to adopt the work
draft CS for SB 98, labeled 27-LS0661\E, as the working
document.
CHAIR FRENCH objected for discussion purposes.
1:55:00 PM
MICHAEL CAULFIELD, staff to Senator Wielechowski, said the
current CS makes two changes. Page 2, lines 12-16, prevents
requiring biometric information as a form of ID in order to take
an occupational exam. Page 3, lines 14-17, provides the state
immunity from rights of action in the event of some breach of
the law. He noted that Ms. Cox was available for further
explanation of this provision.
SENATOR WIELECHOWSKI said he doesn't want the state to be
exposed to a huge penalty because of some inaction, but he
believes that it's very important for the state to take action
to protect Alaskans' privacy rights. He mentioned the recent
instance when the state lost private data for thousands of
Alaskans and said he was open to suggestions.
1:57:24 PM
SUSAN COX, Assistant Attorney General, Civil Division,
Department of Law (DOL), said she was asked if inserting an
immunity provision in the bill would potentially eliminate the
DOL indeterminate fiscal note. She noted that Legislative Legal
Services drafted the current immunity provision, which specifies
that an action for damages or for a penalty could not be brought
against the state. However, she pointed out, if someone felt
that the state wasn't following the law, injunctive relief or a
declaratory judgment action would still be an available remedy.
Version E does address the damages liability aspect, she stated.
SENATOR PASKVAN asked if there is a current cause of action by
an individual.
MS. COX replied the state is subject to liability for negligence
under the state's waiver of sovereign immunity so it's difficult
to anticipate the potential scenarios this bill would seek to
address, and if without this legislation a person could have a
potential cause of action against the state. It would depend on
whether the state breached a duty and if an immunity that is
already on the books would apply. She noted that the state is
implicated in the Price Waterhouse release of state employee
data, but the state met its responsibility under Title 45 by
notifying the persons whose information it collected that there
had been a breach. SB 98 wouldn't affect that type of breach
because it deals with a different type of information that isn't
included in existing law in Title 45.
2:01:44 PM
CHAIR FRENCH asked if Alaskans had a private right of action to
pursue damage claims against the state due to the loss of their
private data in the Price Waterhouse incident.
MS. COX replied there is nothing in statute to provide that and
there has been no litigation to that effect.
CHAIR FRENCH asked if a person would need to bring a typical
negligence suit.
MS. COX replied nothing in the bill that passed in 2008 says
that a private cause of action is authorized against the state
in those circumstances, although the state may be the recipient
of the penalties when a collector of information violates
provisions of that Act. It may be that a person would have to
allege the breach of a common law duty.
2:03:16 PM
CHAIR FRENCH said his concern is whether the bill overly
restricts a right that exists in another setting.
SENATOR PASKVAN opined that the cause of action itself would
have to be analyzed under the existing AS 09.50.250.
MS. COX agreed that the discretionary immunity would be analyzed
through the court's traditional test, but the existence of a
tort would depend on the court analysis of whether the state
owes a duty to the individual. That would depend on the
circumstances.
SENATOR PASKVAN added that if there's the duty, the question is
whether the planning versus operational standard under AS
09.50.250 would apply.
2:04:32 PM
MS. COX said she doesn't want to suggest that there is a cause
of action. The difficulty is that when a statute establishes
mandatory duties and specifically creates a private right of
action, it changes the common law. That opens a door that wasn't
opened before, she stated.
SENATOR PASKVAN responded it changes the common law in the sense
that it creates a duty. Assuming that the duty is changed, you
want to be immune, he said.
MS. COX agreed, at least for the damages liability.
2:05:39 PM
CHAIR FRENCH asked how much biometric information the state
holds.
MS. COX said she didn't have that information.
CHAIR FRENCH referenced the section on alternate identification
and asked if there had been any feedback from test
administrators.
MR. CAULFIELD said Prometric Services has commented extensively
on better test security and keeping test takers from defrauding
the system, but it does have the capability to use other forms
of ID when the use of biometric information is prohibited by
law.
CHAIR FRENCH asked if Prometric Services supports or opposes the
provision.
MR. CAULFIELD replied it opposes the provision, but could manage
it if necessary.
2:08:20 PM
SENATOR WIELECHOWSKI pointed out that a number of places, like
Canada, have a similar provision.
MR. CAULFIELD confirmed that Canadian students don't have to
provide biometric information when taking the LSAT.
SENATOR WIELECHOWSKI noted that a staff member in the building
is going to Canada to take the LSAT because he doesn't want to
give his biometric information in order to take the test.
MR. CAULFIELD said there are two potential amendments to the
current CS. One would broaden the applicability of the alternate
identification section. The second removes the word "agent" from
Sec 14.14.080(b), so that organizations that the state
subcontracts to would still be liable.
2:10:28 PM
SENATOR WIELECHOWSKI said he appreciates that the administration
has been cooperative with respect to the fiscal note.
CHAIR FRENCH warned that he's always leery of immunity grants
and he wants to think it over.
SENATOR PASKVAN said part of the issue goes to the duty and the
potential for a cause for action now. If lots of data is held by
the state, the question is whether there is a duty to a
particular person. He said it would be helpful to have a more
complete understanding of the duty analysis and the status of
the law right now.
CHAIR FRENCH suggested he submit the question in writing to make
it easier for both the Department of Law (DOL) and Legislative
Legal Services to provide an opinion.
CHAIR FRENCH announced he would hold SB 98 in committee for
further work.
| Document Name | Date/Time | Subjects |
|---|---|---|
| CSSB 86 (JUD) Protection of Vulnerable Adults.pdf |
SJUD 4/6/2011 1:30:00 PM |
SB 86 |
| SB86 State Statutes on Undue Influence.pdf |
SJUD 4/6/2011 1:30:00 PM |
SB 86 |
| SB 86 Explanation of SJUD changes.doc |
SJUD 4/6/2011 1:30:00 PM |
SB 86 |