What it does
This measure would ban the City from disclosing private information except when specifically authorized by the individual or by contract, or where required by federal or state law or judicial order. "Private information" is defined as "any information that could be used to identify an individual, including without limitation name, address, Social Security number, medical information, financial information, date and location of birth, and names of relative."
An existing section of the San Francisco Administrative Code bars contractors from disclosing or selling private information. Prop. D replaces Chapter 12M of the Administrative Code, "Nondisclosure of Private Information," with a few changes. The existing chapter prohibits contractors from disclosing private information except under three circumstances: if the contract specifically permits it, if the City provides written approval to disclose the information or if the disclosure is authorized by law. The new ordinance adds a provision that prohibits the City from disclosing private information unless three additional circumstances are met: the individual whose information would be disclosed authorizes its disclosure, a contract authorizes the disclosure, or the federal government, the state government or a court of law require its disclosure (with some exceptions).
Why it is on the ballot
The new ordinance was placed on the ballot by the signatures of four members of the Board of Supervisors and only requires a simple majority for passage.
Those who support this measure claim:
- There is a trend in the country toward the selling of private information for a profit. As this information becomes increasingly valuable, it is necessary to put up barriers to prevent our City government from being tempted to sell or reveal private information.
- The incorporation of this measure puts the government squarely in the role of protecting and respecting the privacy of its citizens. It provides additional protections of private information at a time when such information is increasingly in demand by both thieves and private companies looking to target their marketing efforts directly at consumers with specific wants and needs.
- The proposal grows out of grand jury recommendations related to identity theft and thus responds to real needs that have been explored by an independent group of residents.
- This measure will facilitate the greater provision of government services to its citizens by increasing their trust in government. Recipients of City services who fear that the government will turn over their private information would no longer need to hold such fears since the City could not do so under this measure.
Those who oppose this measure claim:
- This is a complicated measure that has not received full scrutiny and review. There could be many unintended consequences of the passage of this ordinance that have not been assessed. Since this was placed on the ballot without any public hearings, there was no process through which such shortcomings could have been detected and corrected. Providing for amendment by the Board of Supervisors is important, but the supervisors should have debated this measure. Complicated policy decisions with the potential for unintended consequences should go through a public process.
- This measure might inadvertently limit the ability to do substantial investigative research on public officials where the City is in possession of "private information" that is not otherwise considered "public record." Private records might include the addresses of emergency personnel who may not live in the City (as was discovered by a recent article in the San Francisco Chronicle). This issue is worthwhile as a subject of an investigative journalism report that might become outlawed under this ordinance.
- This is a solution seeking a problem, as the Administrative Code already covers contractors and no one has suggested that the City has disclosed private information or has any intention of doing so.
Many people are concerned about the loss of privacy due to governmental and non-governmental actions. The emergence of software protecting Internet users against spyware reflects growing intrusions from new technologies into people's lives. Further, in the past year, controversies emerged around the commercialization of private information by financial institutions. As companies learn to better target their direct solicitations - often electronically - personal information is in higher demand and increasingly profitable.
Identify theft is also a growing problem. The country suffers $50 billion in losses due to identity theft. In the past year, there have been 43,000 reported instances of identity theft in California and 1,100 cases of identity theft reported to the San Francisco police. Growing concern prompted the San Francisco Civil Grand Jury to investigate city policies with regard to identity theft. However, its report of May 2006 indicated that no identity theft had occurred within the departments surveyed and that current practices would not allow that to happen. In their report, the grand jury focused primarily on the theft of Social Security numbers and credit-card numbers.
San Francisco already collects significant personal data on local residents. Collection points include the Department of Public Health, the Treasurer's Office, the Department of Parking and Traffic and the Controller's Office. Collection by contractors within these departments is currently protected, but similar protections do not exist for private information that the City itself collects. The City could make use of this information for profit. Current policies are silent on the protection of citizens from this possibility. Some companies troll public records to gather information for commercial or political purposes. The City can probably do the same in a more efficient and cost-effective way because it is in control of the infrastructure. San Francisco has also chosen to contract out credit-card processing to nationally recognized firms specializing in Web-based remittance processing, thus minimizing or eliminating identity-theft risks.
The existing Administrative Code section provides for enforcement by the City if a contractor violates Chapter 12M of the Administrative Code. There is no added provision for enforcement against the City by an individual whose personal information has been disclosed.
Although it appears that information that is now a part of the public record would not be affected by this measure, it remains unclear how this would affect information about city employees. For example, some of this information is public record now but might be construed by the measure to become private information.
The measure provides for amendment by the Board of Supervisors by a two-thirds vote, which would allow modification of the measure without another ballot measure. SPUR supports having this modification clause within ballot measures to ensure flexibility to amend such measures to respond to future circumstances.
It is important to note that a simple majority of the Board of Supervisors alone could have added this provision to the Administrative Code. Having it added by a vote of the people may give the provision more weight, but removes the opportunity for public debate and discussion.
Although there are legitimate concerns about privacy and identity theft facing San Franciscans, it is unclear what problems Prop. D is designed to solve. It is also unclear what the effect of the measure might be. We are somewhat ambivalent about recommending a "No" vote. We do not feel that either SPUR or the voters have enough information to understand this measure, and it appears there might be some unintended consequences that have not been fully investigated. Clearly, the goal of protecting privacy is necessary, but it is not clear if this measure will further that goal in the right way. In general, we believe that attempts to resolve complex modern challenges to privacy and identity theft are best done with rigorous analysis and after healthy public debate. Asking the voters to decide upon a measure so difficult to understand - and asking them to do so without such a debate - is irresponsible and an abuse of the initiative process. It is possible that there are better solutions to the problems of identity theft that could be solved through hearings, discussion and action by the Board of Supervisors.
SPUR recommends a "No" vote on Proposition D.