New California Law on Background Checks Appears to be First Law in U.S. to Regulate Offshoring of Personal Data Overseas

By Thomas Ahearn, ESR News Blog

On September 29, 2010, Governor Arnold Schwarzenegger signed into law California Senate Bill 909 (SB 909), which appears to be the first law in the nation that addresses the issue of “offshoring” where the personal information of American consumers in sent offshore and outside the United States of its territories.

Authored by State Senator Rod Wright (D – Inglewood), SB 909 amends the California Investigative Consumer Reporting Agencies Act (ICRAA) that regulates background checks in California. The bill requires that a consumer must be notified as part of a disclosure before the background check of the web address where a consumer “may find information about the investigative reporting agency’s privacy practices, including whether the consumer’s personal information will be sent outside the United States or its territories.”

If a background screening firm does not have a web site, then the background screening firm must provide the consumer a phone number where the consumer can obtain the same information. The background screening firm’s privacy policy must contain “information describing its privacy practices with respect to its preparation and processing of investigative consumer reports.”

Specifically, SB 909 requires that background screening firms in California (and firms that do business in California) must have a statement in their privacy policy entitled “Personal Information Disclosure: United States or Overseas” that indicates whether the personal information will be transferred to third parties outside the United States or its territories.

SH 909 defines “third parties” as including, “but not being limited to, a contractor, foreign affiliate, wholly owned entity, or an employee of the investigative consumer reporting agency.” The bill also requires a “separate section that includes the name, mailing address, e-mail address, and telephone number of the investigative consumer reporting agency representatives who can assist a consumer with additional information regarding the investigative consumer reporting agency’s privacy practices or policies in the event of a compromise of his or her information.”

In the event a consumer is harmed by virtue of a background screening firm negligently sending data offshore, the bill provides for damages to the consumer.

SB 909 takes effect January 1, 2012.  This will presumably allow time for background screening firms to provide new releases to employers, or to modify the language on online systems. The full text is available at: http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0901-0950/sb_909_bill_20100929_chaptered.pdf.

ESR Does Not Offshore

Employment Screening Resources (ESR) does not offshore personal data, and all domestic background checks are performed exclusively in the United States. ESR will provide more a detailed analysis of this new law in upcoming blogs. For more information about background checks, visit http://www.esrcheck.com/.

Sources:
http://gov.ca.gov/press-release/16089/
http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0901-0950/sb_909_bill_20100929_chaptered.pdf