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.