SB 190-BIOMETRIC INFORMATION FOR ID  CHAIR FRENCH announced the consideration of SB 190. [CSSB 190(STA) was before the committee.] 1:49:58 PM SENATOR WIELECHOWSKI said the purpose of SB 190 is to update a law that protects the privacy rights of citizens from emerging new technologies. In 2004 the Legislature unanimously passed a bill by Senator Donny Olson that outlaws the collection, analysis or storage of a law-abiding citizen's DNA without their written consent. SB 190 extends that protection to other forms of biometric information because emerging technology for individual recognition threatens privacy rights. The Alaska Constitution has the strongest provision in the nation regarding individual privacy rights and this bill meshes very well with that constitutional provision, he said. The Legislature recently rejected adopting the federal Real ID Act because it would give the federal government the ability to track people through radio frequency ID chips in their driver's license. But now people can be tracked through facial recognition or retinal scan technologies, which greatly impacts individual privacy rights, he said. SENATOR WIELECHOWSKI reported that his office was approached by a citizen in 2008 who was refused admittance to a state CPA exam after he offered his driver's license, passport, and Social Security card as identification, but he refused to submit to fingerprinting. He inspired the bill. 1:52:42 PM CHAIR FRENCH related that he heard the bill in a previous committee and has no questions. GEORGE ASCOTT, Staff to Senator Wielechowski, said the packet contains an explanation of the changes that occurred in version T. SENATOR COGHILL observed that the definitions for "biometric information" on page 3, lines 6-8, are quite broad and seem to be terms of art. He asked if the terms had been litigated and if facial recognition is different than a photograph. MR. ASCOTT said a photograph is a picture whereas a facial recognition system has a camera, software to capture information beyond the image, and a computer system to classify the elements and differentiate between faces. 1:55:31 PM SENATOR COGHILL asked about the circumstance of a private investigator who is trying to prove that somebody was at a crime scene and in the process collects some of this biometric information. MR. ASCOTT said the Department of Law has similar concerns, specifically with regard to fingerprints because they sometimes rely on fingerprints that a private investigator may have collected. He clarified that thwarting common practices is not the intent. SENATOR COGHILL said he shares the sponsor's concern about protecting personal identity, but he doesn't want to inadvertently open the door for civil action for doing things that are common practice. 1:58:10 PM RICK SVOBODNY, Deputy Attorney General, Department of Law (DOL), explained that in 2004 when Title 18 was amended to deal with DNA, there was concern that much more information could be obtained from a DNA sample than simple identification. Science was and is moving very fast and that's why that legislation was limited to DNA. Since then biometric information like voice recognition has become ubiquitous. Phone companies retain voices to help "teach" their software to read different accents, Google does the same thing with spell checking on search requests, and Las Vegas casinos use visual recognition software to stop card- counters from coming into the casinos. 2:01:26 PM MR. SVOBODNY said the foregoing examples don't relate to the department too much, but collecting or retaining fingerprints does because DOL often relies on private investigators from insurance companies to do arson examinations. AS 18.70.090 is a specific statute that says that the police can and should cooperate with private investigators from insurance companies in arson investigations. For that reason, fingerprints may well be collected and retained. Although the changes in the CS exclude government agencies, it doesn't include the agents of those government agencies. For example, village public safety officers (VPSO) don't fit the definition of a government agency and they wouldn't be able to collect or transmit fingerprint or DNA samples from a crime scene under this. Tribal public safety officers (TPSO) would be similarly limited. 2:04:07 PM SENATOR WIELECHOWSKI highlighted that page 2, lines 1-12, specifically say that the prohibitions in subsection (a) do not apply to DNA samples or other biometric information collected for law enforcement purposes. He asked if that exclusionary provision wouldn't apply to those situations. MR. SVOBODNY said an ambiguity in a criminal statute always goes to the defense. "Because you define out from governmental entities VPSOs [and] TPSOs - there's that ambiguity that means the state in a criminal case loses." SENATOR FRENCH asked if he's saying that the exclusionary provision conflicts with Section 3. MR. SVOBODNY said yes on page 2, line 31. SENATOR FRENCH asked if it would alleviate his concern to say, "a person who is not a governmental entity or who is not engaged in a law enforcement purpose commits the crime…" MR. SVOBODNY answered yes. 2:06:20 PM MR. SVOBODNY said his two final points are civil as opposed to criminal. First, this creates a private right of action and people can and will sue. Although this won't affect the state very much, he said he wanted to mention it as a point of ethics. Second, he said he doesn't know what the "willing" requirement for informed consent on page 1, line 10, really means. MR. SVOBODNY summarized that DOL's concern centered on the agency issue and dealing with insurance companies that are providing services to law enforcement or others who are acting at the request of law enforcement. 2:08:47 PM SENATOR COGHILL asked his perspective on calling the definitions for biometric information terms of art and questioned whether the meaning of "collect" will be problematic with this much broader category. MR. SVOBODNY acknowledged that he was concerned about the word "collect" in light of the expanded area of things you cannot collect. He related that for crime to occur there will have to be a culpable mental state, but unless it's defined differently, the person will have to knowingly collect. A larger concern with the current language relates to retention although he can't imagine people being prosecuted for inadvertently collecting and retaining fingerprints. In fact, an Alaska court has said that a person does not have a privacy interest in their fingerprints just as they don't have a privacy interest in their address or face. This would change that court decision by statute, he said. SENATOR COGHILL asked if the right to action with respect to collection would be because the intention was to cause the person damage or because another person or entity would gain. 2:11:45 PM MR. SVOBODNY said the bill does have a $5,000 penalty provision and a higher penalty provision if the person is seeking financial gain from someone who obtained or retained their voice for economic benefit. SENATOR COGHILL asked if there's any reason to be concerned with the definitional terms of art under biometric information. MR. SVOBODNY said he doesn't understand facial recognition to mean taking a photograph. He hasn't done research to know if facial recognition and voice recognition have specific meanings, but he assumes that they do. Certainly there are lots of examples of their use. 2:14:09 PM SENATOR COGHILL said these definitions will be very important if someone wants to bring action. The bill specifies certain fines, but he's trying to figure out how you defend yourself. JEFFREY MITTMAN, Executive Director, ACLU of Alaska, thanked the sponsor for introducing good, proactive legislation that appropriately balances the needs of law enforcement and the constitutional rights of Alaskans. SB 190 expands current law to include biometric information, which has become important in business and law enforcement. The ACLU of Alaska supports the bill, he concluded. SENATOR COGHILL asked if he had studied any of the terms under the definition of biometric information. MR. MITTMAN replied he isn't familiar with any specific case law that would apply in this context. 2:16:50 PM BILL SCANNELL, representing himself, reported that he is a privacy activist speaking in strong support of SB 190. He suggested that the committee put things in perspective by considering the difference between losing your wallet fifty years ago and losing it today. Then you'd lose the money in your wallet and now "when you lose your wallet in many ways you can lose your life," he asserted. He cited the Clear program, which was supposed to expedite a person's trip through airport security, as an example. When that company went bankrupt, tens of thousands of people found that their retina scans, fingerprints, hand geometry, and facial patterns were being sold to the highest bidder. People need to understand how important these biometric issues are and the role of the state in protecting all Alaskans from both misuse and poor implementation, he said. MR. SCANNELL asked the committee to think about two things. 1) SB 190 will create an overall policy of buying technology that is appropriate to the job at hand; and 2) this is a good pre- emptive move to ensure that if a biometric program is found that works, that biometric won't be wasted. 2:20:29 PM CHAIR FRENCH asked Mr. Ascott if the bill had received any pushback. MR. ASCOTT aid the National Council of Life Insurers contacted the sponsor and suggested an amendment to significantly narrow the definition of biometrics. That was done, but the definition may have to be narrowed further to remove the term "DNA" because it's already been defined. SENATOR COGHILL pointed out that the original legislation was quite specific with respect to getting a DNA sample and holding it for a period of time whereas this bill is significantly broader. I'm open to suggestion, he said, but I really haven't got my mind around how this is going to work. He said some of his concerns about voice recordings and pictures have been allayed, but how that information is collected could be significant. Some of these things are very technical and specific, but they aren't specific in the bill, he said. 2:23:23 PM SENATOR WIELECHOWSKI said we'll sit down with you and the Department of Law and try to iron out the concerns because we don't want unintended consequences. What the bill is trying to do is to stop the expansion of the surveillance society in the U.S. - particularly in Alaska. CHAIR FRENCH announced he would hold SB 190 in committee.