Legislature(2011 - 2012)BELTZ 105 (TSBldg)

03/21/2011 01:30 PM Senate JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ SB 7 FELONS' RIGHT TO VOTE OR BE JURORS TELECONFERENCED
Heard & Held
+ SB 98 BIOMETRIC INFORMATION FOR ID TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
= SB 30 RETURN OF SEIZED PROPERTY
Moved CSSB 30(JUD) Out of Committee
              SB  98-BIOMETRIC INFORMATION FOR ID                                                                           
                                                                                                                                
1:33:32 PM                                                                                                                    
CHAIR FRENCH announced the consideration  of SB 98 and noted that                                                               
the committee  was hearing the  version that came from  the State                                                               
Affairs Committee.                                                                                                              
                                                                                                                                
SENATOR WIELECHOWSKI  said he introduced  the bill last  year but                                                               
time ran  out before it made  it through both bodies.  He decided                                                               
to reintroduce  the bill  when concerns  were again  raised about                                                               
how  biometric  information  is  collected  and  used.  The  bill                                                               
basically does two things. First,  AS 18.14.010 which is found on                                                               
page  1,  lines 5-9,  says  a  person  may not  retain,  analyze,                                                               
disclose, or  distribute someone's biometric  information without                                                               
first obtaining the informed consent  of that individual. Second,                                                               
the language on  page 1, lines 10-15, says that  an individual is                                                               
not required to  provide their biometric data for  the purpose of                                                               
identification if  they provide either  a passport or  some other                                                               
form of identification  card. The Alaska Constitution  has a very                                                               
good  privacy provision  and  this bill  seeks  to continue  that                                                               
protection now  and in  the future.  Alaskans don't  want private                                                               
information  about  themselves  like iris  scans,  hand  geometry                                                               
recognition,  and retinal  scans  floating around  and this  bill                                                               
seeks to provide that protection.  He said his staff member would                                                               
answer questions or walk through the bill.                                                                                      
                                                                                                                                
1:36:19 PM                                                                                                                    
MICHAEL  CAUFIELD,  Staff  to  Senator  Wielechowski,  introduced                                                               
himself and offered to proceed at the chair's direction.                                                                        
                                                                                                                                
CHAIR FRENCH  asked if  the bill interferes  with the  ability of                                                               
the  Department of  Corrections (DOC),  the Department  of Public                                                               
Safety  (DPS), or  the Department  of Law  (DOL), to  fingerprint                                                               
criminals  and   retain  those  fingerprints  to   analyze  in  a                                                               
database.                                                                                                                       
                                                                                                                                
MR.  CAUFIELD  replied  the  bill  provides  exemptions  for  law                                                               
enforcement  purposes including  identification of  perpetrators,                                                               
investigation   of   crimes,   identification   of   missing   or                                                               
unidentified  persons,   or  identification  of   human  remains.                                                               
Exemptions   are   also   provided    for   the   Department   of                                                               
Administration  for presenting  drivers licenses  and any  facial                                                               
images as  well as any  biometric information when  authorized by                                                               
state or federal  law. While the Department of  Health and Social                                                               
Services  (DHSS)  hasn't endorsed  the  bill,  it has  no  stated                                                               
objection.                                                                                                                      
                                                                                                                                
1:38:06 PM                                                                                                                    
SENATOR  COGHILL asked  if the  Health Insurance  Portability and                                                               
Accountability  Act (HIPAA)  requirements are  covered under  the                                                               
federal exemption.                                                                                                              
                                                                                                                                
MR. CAUFIELD replied anything that's  written in state or federal                                                               
statute is exempted from this law.  He added that the bill may be                                                               
amended to expand  the exemptions to address  DOL's concern about                                                               
having private rights of action brought against them.                                                                           
                                                                                                                                
SENATOR  COGHILL questioned  how the  revocation provision  would                                                               
mesh with  the electronic signature laws  that accommodate people                                                               
who are physically unable to sign for themselves.                                                                               
                                                                                                                                
MR. CAUFIELD replied  the bill specifically states  that a person                                                               
can consent  to have their  fingerprints used  for identification                                                               
purposes.                                                                                                                       
                                                                                                                                
1:40:41 PM                                                                                                                    
SENATOR MCGUIRE joined the committee.                                                                                           
                                                                                                                                
CHAIR  FRENCH asked  if the  bill  would stop  store owners  from                                                               
capturing images of their customers when on the premises.                                                                       
                                                                                                                                
MR. CAUFIELD  replied the bill  still allows the use  of security                                                               
cameras  to keep  people  from shoplifting  and  there's also  an                                                               
exemption  for circumstances  like grandma  taking pictures  at a                                                               
family picnic.                                                                                                                  
                                                                                                                                
CHAIR FRENCH  asked which aspect  of the definition  of biometric                                                               
system allows store owners to continue to run closed video.                                                                     
                                                                                                                                
MR.   CAUFIELD   directed   attention   to   Sec.18.14.090(3)(D),                                                               
"comparing  the  biometric  data  extracted  under  (B)  of  this                                                               
paragraph with biometric  data stored for the  individual for use                                                               
in future  recognition of the  individual;" and said that  to run                                                               
afoul  of the  statute  the  store owner  would  need  to make  a                                                               
comparison with a  past picture in order to  monitor the person's                                                               
whereabouts. He added  that DOL has said  that facial recognition                                                               
is when  you use a  machine to  identify the person.  The packets                                                               
contain  a   report  from  the  Electronic   Frontier  Foundation                                                               
indicating that facial  recognition scans were used  at the Tampa                                                               
Bay Super Bowl just before 9/11.                                                                                                
                                                                                                                                
CHAIR FRENCH  reviewed the  report and asked  if this  bill would                                                               
prohibit that  sort of police  or private security  activity from                                                               
taking place in the state of Alaska.                                                                                            
                                                                                                                                
MR. CAUFIELD answered yes.                                                                                                      
                                                                                                                                
1:44:10 PM                                                                                                                    
MICHAEL LESMEIER,  State Farm Insurance, expressed  concern about                                                               
what SB 98  would prevent. For example, a  private building owner                                                               
couldn't  use   biometric  information  for   building  security,                                                               
computer  security,  and  a  variety   of  other  ways  that  the                                                               
information  potentially can  be used  or  could be  used in  the                                                               
future. State Farm  doesn't use this information in  Alaska but a                                                               
company that wanted  to would need to have  two separate security                                                               
systems, one  for the people who  gave consent and the  other for                                                               
those who did not give consent.  Our judgment is that's not good,                                                               
he  stated.  Perhaps there  are  situations  where this  sort  of                                                               
information is being  captured and misused, but  State Farm isn't                                                               
aware of  any and wonders  about the  wisdom of taking  this kind                                                               
tool off the table.                                                                                                             
                                                                                                                                
CHAIR FRENCH  asked if State  Farm gathers  biometric information                                                               
as part of its insurance work.                                                                                                  
                                                                                                                                
MR. LESMEIER answered no, but  he believes it's used for security                                                               
purposes in one building at the home office in Illinois.                                                                        
                                                                                                                                
CHAIR FRENCH expressed surprise that  building security is a core                                                               
concern of State Farm.                                                                                                          
                                                                                                                                
MR.  LESMEIER responded  that building  security is  a legitimate                                                               
concern of  anybody in  private or  public business,  both during                                                               
and after  hours. In  particular, it's a  concern for  anyone who                                                               
handles confidential  information. We may have  other concerns as                                                               
we study the  bill further, but we would urge  caution when there                                                               
doesn't appear to be an immediate need, he stated.                                                                              
                                                                                                                                
1:48:07 PM                                                                                                                    
SENATOR PASKVAN referenced the  exemption under Sec.18.14.060 (1)                                                               
on page 2, line 18, and  wondered if that exemption would satisfy                                                               
State Farm's concerns  to gather biometric data  for internal law                                                               
enforcement  purposes. What  the bill  intends to  stop is  State                                                               
Farm or any other company from  extracting that data and using it                                                               
to target their own customers or others.                                                                                        
                                                                                                                                
MR. LESMEIER  said this bill  would prevent companies  from using                                                               
this  information   to  protect  buildings,   computers,  medical                                                               
information,  and financial  information  and that's  not a  good                                                               
idea.                                                                                                                           
                                                                                                                                
CHAIR FRENCH  posed a hypothetical  situation of an  employer who                                                               
requires  his  employees  to  consent to  a  thumbprint  scan  to                                                               
password protect company  computer files. He said  he didn't know                                                               
if that  would run  afoul of Sec.18.14.050  and create  a private                                                               
right of action,  but he believes that collecting  and using that                                                               
information  for a  private business  purpose  is different  than                                                               
someone  who collects  and  then uses  the  information from  the                                                               
public at large. He opined  that collecting biometric information                                                               
for  the  purpose  of  building  security  would  be  problematic                                                               
because it  affects people who are  not employed by the  owner of                                                               
the building.                                                                                                                   
                                                                                                                                
MR.  LESMEIER  said his  understanding  of  the  bill is  that  a                                                               
potential employee  would have to  consent to the thumb  scan and                                                               
it  couldn't be  a  condition of  employment  because that  would                                                               
create a private  cause for action. He added  that he appreciates                                                               
the committee's  concern about secondary use  of the information,                                                               
but the bill goes way beyond that.                                                                                              
                                                                                                                                
1:54:06 PM                                                                                                                    
SENATOR  WIELECHOWSKI said  he reads  the  bill differently.  The                                                               
purpose  of the  bill is  to protect  an individual's  privacy by                                                               
limiting  the secondary  transmission  and use  of this  personal                                                               
information. He offered to work  with the drafter to clarify that                                                               
because biometric information does have certain values.                                                                         
                                                                                                                                
CHAIR FRENCH referenced  point three on the  sponsor's fact sheet                                                               
that  indicates that  the  bill is  aimed  at organizations  that                                                               
collect  and  sell  biometric  data   to  third  parties  without                                                               
consent. The  fourth point states  that biometric data  is useful                                                               
in fields like medicine and security  and the bill doesn't aim to                                                               
stop that use, but it has to be with consent.                                                                                   
                                                                                                                                
1:56:25 PM                                                                                                                    
HORST  POEPPERL,  Chief  Executive  Officer,  Borealis  Broadband                                                               
Inc.,  Anchorage, AK  stated  strong support  for  SB 98  because                                                               
people  today face  an onslaught  of organizations  determined to                                                               
extract  every  piece  of  personal  information  possible.  This                                                               
situation  is  out  of  hand,  and  is  becoming  more  and  more                                                               
dangerous for  the average citizen.  Companies buy and  sell this                                                               
data, and it can also be lost  or stolen. The best defense is not                                                               
giving up the information in the first place.                                                                                 
                                                                                                                                
The best protection  is to not allow the data  to be collected in                                                               
the  first place.  The  idea  that a  nation  is  more secure  by                                                               
collecting private information is Orwellian  at best. In fact, we                                                               
need to reverse the data mining that already exists, he stated.                                                                 
                                                                                                                                
2:00:51 PM                                                                                                                    
TIMOTHY PEARSON, Executive  Coach, Pearson Consulting, Anchorage,                                                               
AK, stated  support for SB 98.  He pointed out that  Section 1.22                                                               
of the Alaska State Constitution  clearly recognizes the right of                                                               
the people to  privacy without infringement, and  states that the                                                               
Legislature  shall implement  this section.  We need  to look  at                                                               
what that  means and  how to apply  it in a  digital era  but the                                                               
reasons  undergirding that  constitutional  right are  unchanging                                                               
and significant, he  stated. This bill will help  correct some of                                                               
the current  imbalance given the  fact that the power  of private                                                               
sector databases  has significantly altered the  balance of power                                                               
between the state and the individual.                                                                                           
                                                                                                                                
He suggested the committee review  the book "Identity Crisis: How                                                               
Identification is  Overused and Misunderstood" by  Jim Harper and                                                               
an   article  entitled   "Big   Brothers   Little  Helpers:   How                                                               
Choicepoint and  Other Commercial Data Brokers  Collect, Process,                                                               
and  Package  Your  Data  for   Law  Enforcement"  by  Chris  Jay                                                               
Hoofnagle.                                                                                                                      
                                                                                                                                
MR. PEARSON said  he would also note that you  can't always trust                                                               
the people at  the top of an organization  regarding the security                                                               
of personal data; that is  where most security breaches occur. He                                                               
cited information from a WikiLeaks  document in which the head of                                                               
TSA offered  U.S. citizen  fingerprint databases  to the  head of                                                               
the  Egyptian   secret  police  in  exchange   for  the  Egyptian                                                               
government  sharing fingerprints  of  extremists that  it had  on                                                               
file.  Trusting that  law enforcement  agencies will  handle such                                                               
information securely  has been breached such  that the safeguards                                                               
provided by  Section 1.22 of  the Alaska constitution  deserve to                                                               
be strengthened, he concluded.                                                                                                  
                                                                                                                                
2:08:12 PM                                                                                                                    
JASON  GIAIMO,  Co-chair, Citizens  for  Privacy  in Alaska,  and                                                               
President, Net  Gain Business  Consultants of  Alaska, Anchorage,                                                               
AK, said he  doesn't believe that SB 98 would  affect anybody who                                                               
puts up a surveillance camera in  their shop unless they also use                                                               
facial  recognition software.  Actually,  he  said, the  question                                                               
boils down to  whether Alaskans should be compelled  to submit to                                                               
fingerprinting  that will  be stored  in a  private database.  He                                                               
thinks the  answer is no because  it will get lost.  The State of                                                               
Alaska knows this.                                                                                                              
                                                                                                                                
Data  mining and  biometrics collection  is big  business; it  is                                                               
estimated  that industry  revenues  will exceed  $7.5 billion  in                                                               
2012  alone. Corporate  revenues  from  fingerprints, iris,  vein                                                               
scanning and  facial recognition  and surveillance make  up about                                                               
49 percent of  that total. The Superintendent of  the Los Angeles                                                               
unified school  district is considering  mandatory fingerprinting                                                               
of  all  low  income  school  children or  they  will  be  denied                                                               
subsidized  lunches. A  city  in  Arizona is  trying  to pass  an                                                               
ordinance  requiring  fingerprint ID  to  receive  medicine at  a                                                               
local pharmacy.                                                                                                                 
                                                                                                                                
MR. GIAIMO said  his involvement started in 2008 when  he went to                                                               
take the  last two  parts of  the CPA exam  in Anchorage.  He was                                                               
told that policy  had changed and his  fingerprints were required                                                               
as  proof of  identification;  a passport,  driver's license,  or                                                               
birth certificate  was no  longer sufficient as  ID to  enter the                                                               
exam room.  He refused, which was  very hard, but he  felt it was                                                               
important to retain his integrity.                                                                                              
                                                                                                                                
Because he is  also a certified internal auditor, he  was able to                                                               
follow  the  money  trail.  He  learned  that  a  company  called                                                               
Prometric  Corporation   receives  a   fee  for   collecting  the                                                               
fingerprints, and  they sell  the data  to an  international data                                                               
mining  company  called ChoicePoint.  This  company  is owned  by                                                               
LexisNexis who  received the largest  fine in the history  of the                                                               
Federal Trade  Commission for violating consumer  privacy rights,                                                               
federal  laws,  and  for  making  false  statements  about  their                                                               
privacy  policies.  These  companies  are  all  about  maximizing                                                               
profits  for  shareholders  and  their goal  is  to  profit  from                                                               
Alaskans' loss  of privacy. View  what they say in  that context,                                                               
he cautioned.                                                                                                                   
                                                                                                                                
2:15:15 PM                                                                                                                    
CHAIR FRENCH announced he would hold SB 98 in committee.                                                                        
                                                                                                                                

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