SB 98-BIOMETRIC INFORMATION FOR ID  2:14:40 PM CHAIR FRENCH announced the consideration of SB 98 and asked for a motion to adopt the proposed committee substitute (CS). SENATOR WIELECHOWSKI moved to adopt CS for SB 98, labeled 27- LS0661\T, as the working document. CHAIR FRENCH objected for discussion purposes. SENATOR WIELECHOWSKI asked his staff to describe the changes. 2:15:35 PM MICHAEL CAUFIELD, Staff to Senator Wielechowski, sponsor of SB 98, described the following changes: Page 2, lines 17-19, contains new language that clarifies that occupational exams are also educational exams, and that the exam administrator may determine what constitutes an acceptable alternative ID. He noted that some questions may still arise with this section. Page 3, line 18, the phrase "agents of the state," was removed to ensure that the state is exempt from liability, but not an organization that contracts with the state. Page 3, lines 29-30, creates an exemption for voice data collected for quality assurance purposes, and the exemption for "facial images in a biometric system" was removed. Page 3, lines 1-2, "facial images" was changed to "facial mapping" in the redefinition of "biometric data" on page 4, lines 1-2. Page 4, lines 25-26, "facial mapping" was defined as "the use of digital technology to measure the features of an individual's face." This was done to ensure that pictures cannot be defined as biometric information. MR. CAUFIELD said he understands there might be additional issues with the alternate identification. 2:18:46 PM CHAIR FRENCH referenced the alternate identification provision on page 2, lines 12-19, and asked what would happen if someone administering the LSAT would settle for nothing other than a fingerprint for identification. MR. CAUFIELD replied the current draft requires the administrator to accept another acceptable form of identification. He acknowledged that it could present a problem if the administrator said no other form of identification was acceptable. Proposed amendment 27-LS0661\T.1 addresses the issue. 2:20:25 PM SENATOR WIELECHOWSKI clarified that version T says the company that administers the exam cannot require someone to provide biometric information for identification if they provide alternate identification that is acceptable to the person administering the occupational exam. The intent of the provision is that something like a library card would not be acceptable, but a passport or driver's license clearly would be acceptable alternate identification. CHAIR FRENCH asked what would happen if the LSAT administrator would only accept a fingerprint as acceptable identification. A passport was not acceptable. SENATOR WIELECHOWSKI replied that would be a violation of the law. SENATOR PASKVAN said he worries that a national licensing entity will say it won't allow the exam to be administered in Alaska. It would be unfortunate to make it so restrictive that national testers see that the only alternative is to leave the state. He noted that the amendment he drafted tries to accommodate that. CHAIR FRENCH asked if the amendment pertains to this section. SENATOR COGHILL asked if it would be too broad to reword the provision to say "generally accepted identification." CHAIR FRENCH suggested he hold the thought until the amendment was considered. 2:26:51 PM SENATOR PASKVAN moved to bring Amendment 1, 27-LS0661\T.1, before the committee for discussion purposes. AMENDMENT 1 OFFERED IN THE SENATE BY SENATOR PASKVAN TO: CSSB 98( ), Draft Version "T" Page 2, line 12: Delete "If" Insert "(a) Except as provided in (b) of this section, if" Page 2, line 17, following "examination.": Insert new material to read: "(b) If the collection of the biometric information of an individual taking an occupational examination is legitimately necessary to establish the security of the occupational examination, the person who administers the occupational examination may collect the biometric information, but the person shall comply with the collection and other requirements of this chapter with regard to the biometric information, and the person shall require the person's contractor, if any, to agree to comply with the collection and other requirements of this chapter with regard to the biometric information. (c)" SENATOR PASKVAN said the purpose of the amendment is to address the problems that administrators of the CPA exam have had with individuals on the East coast transferring test questions to individuals on the West coast hours before the test is administered. The amendment says that if collection of biometric information is deemed legitimately necessary to secure an occupational examination, the exam administrator may collect the biometric information in compliance with the other requirements of the bill. This is a compromise and a better solution than a blanket prohibition, he said. 2:30:10 PM SENATOR WIELECHOWSKI said he appreciates the intent, but he objects to the amendment. There are other ways to ensure that the person taking the test is the singular person credited with taking the test. Proctors are hired to watch individuals who are taking an examination, including following them to the bathroom. As written this is a good bill that provides a lot of protections for Alaskans, he stated. 2:32:01 PM SENATOR COGHILL said he can understand both sides of the question, but is seems as though the test taker is being asked to surrender a lot in order to secure the integrity of the test. He wondered if the test administrators shouldn't be more responsible for ensuring that integrity, and observed that the amendment appeared to double the reasons for the test administrators to collect that information. SENATOR PASKVAN moved to adopt Amendment 1, labeled 27- LS0661\T.1. SENATOR WIELECHOWSKI objected. 2:34:27 PM A roll call was taken. Amendment 1, 27-LS0661\T.1, failed 2:2 with Senator Paskvan and Senator French voting yea and Senator Coghill and Senator Wielechowski voting nay. CHAIR FRENCH referred to page 3, lines 11-16, Sec. 18.14.080, right of action, and asked if the idea is to penalize people who lose biometric information. MR. CAUFIELD replied it addresses people who lose or distribute biometric information. CHAIR FRENCH asked for a discussion about the policy rationale for subsection (b), which immunizes the state against a claim for damages for lost biometric information. SENATOR WIELECHOWSKI told the committee that the state was initially concerned that if the information was distributed the state could potentially be liable for millions of dollars in damages. He said he isn't a fan of immunizing the state so it was a tough call, but if that provision hadn't been included it's likely a fiscal note would have been attached making the bill more difficult to pass. It would still be illegal for the state to disclose the information, but an individual couldn't sue for damages if that did happen. He reiterated that, as a whole, it's a good bill that moves Alaska forward on protecting peoples' private information. 2:37:28 PM CHAIR FRENCH observed that in a number of places the record clearly reflects the sponsor's reluctance to offer the state immunity provisions. He expressed similar concern, and suggested that this is one step forward and perhaps there will be opportunity to revisit that provision in the future. SENATOR PASKVAN expressed concerned that the state is being provided absolute immunity regardless of how egregious its conduct might or might not be. It's problematic. 2:39:07 PM CHAIR FRENCH referenced page 2, line 3, Sec. 18.14.020, and asked if the penalties for disclosing, transferring, or distributing collected biometric information are contained in Sec. 18.14.080. It's a civil violation for which there is a financial penalty. MR. CAUFIELD answered yes. CHAIR FRENCH asked if a "bad apple" state employee would be immunized if he were to intentionally sell another person's biometric information. MR. CAUFIELD replied they would be immunized if they were acting as an agent of the state. SENATOR WIELECHOWSKI clarified that if they were acting within their duties as a state employee they would be immunized, but if they were acting outside their state duties they would be liable. CHAIR FRENCH commented that they could be on the hook for $100,000. 2:40:32 PM SENATOR PASKVAN pointed out that Sec. 18.14.080(b), on page 3, line 17, gives an employee of the state immunity for damages, a penalty, or both for violations under this chapter. SENATOR WIELECHOWSKI responded he suspects there are creative lawyers that could figure out violations outside this chapter for a state employee who did something like that. SENATOR PASKVAN said his perception is that the immunity is broad. SENATOR WIELECHOWSKI said it's not the intent to ban some other common law claim, tort claim, or claim under another statute. 2:41:55 PM CHAIR FRENCH suggested that the general concern is probably aimed at private enterprise collecting the material, not state collection. SENATOR WIELECHOWSKI suggested amending the bill to address the issue that Senator Coghill spoke to about acceptable alternate identification. On page 2, line 16, following the word "information" delete the remainder of the sentence and insert "if the individual provides generally accepted alternate identification to the person administering the occupational examination." It's not a substantive change. At ease from 2:44 p.m. to 2:45 p.m. to write down the suggested amendment. 2:45:02 PM CHAIR FRENCH reconvened the meeting and announced that the amendment would be put aside. He asked the will of the committee. SENATOR WIELECHOWSKI moved to report CSSB 98( ), version T, from committee with individual recommendations and attached fiscal note CHAIR FRENCH announced that without objection, CSSB 98(JUD) moved from the Senate Judiciary Standing Committee.