Vermont Legislature SmartTranscripts:

[Representative Emily Krasnow]: Love having you. Yeah. Any chance I can. Well So

[Senator Alison Clarkson (Chair)]: we're live. Welcome. We've just had a a very sobering, meeting with our manufacturing or manufacturers in a joint hearing with House Commerce, and we are now turning our heads to a very different subject in our jurisdiction. We're turning our our attention to another house bill that's been passed out h eight eighty seven, an act relating to crime victim status under the Fair Employment Practices Act. So one of our just everyone remembers his labor. So the reporter of the bill is state representative Emily Krasnow. And Emily, we look forward to hearing why we're doing this, what problem is it solving, and then we'll hear from Sophie to walk through the bill.

[Representative Emily Krasnow]: Good. Well, for the record, representative Emily Crosson, South Burlington, Chittenden and I, and I'm going to be really honest with you before I start. This bill may look very familiar. It does. So I am the lead sponsor as well as the reporter, because the impetus was, I believe that when we work on legislation and there's a, whether you call it a fix or an addition that needs to be placed, that it's our responsibility to continue that work. So, I absolutely, wanted to continue, to make it right for the error or however you want to put it. So, last year the legislature took an important step forward in protecting survivors of the workplace through the passage of age four sixty one. That bill, now Act 32, allows survivors of domestic violence, sexual assault, stalking to take up to twelve weeks of unpaid job protective safe leave to seek safety, pursue justice, and to heal. Since that passage, the Civil Rights Unit of the Vermont attorney general's office has identified a gap between the documentation requirements needed to access unpaid safe leave and those required to receive protections under Fair Employment Practices Act, known as FIFA, as a victim of a crime. Under FIFA, employees are prohibited from discriminating on the basis of protected status, including status of the victim of crime. But because the documentation standards in the two statutes are not aligned, survivors who are lawfully take safe leave may still face vulnerability to adverse employment actions because they are unable to satisfy FIBA's differing documentation rules. H887 resolves this problem by harmonizing these documentation standards and ensures that survivors can fully access both unpaid safe leave and anti discrimination protections without unnecessary or unintended barriers. So, that's kind of, it's a, we don't like to say a easy short bill, but you both are very familiar and I'll refresh your memories because you have some, like us, have a lot of your jurisdiction that this is included in your, I call it your labor bill.

[Senator Alison Clarkson (Chair)]: It is a public Right,

[Representative Emily Krasnow]: so you sent us a bill that we're working on now that has this language. 02/30. Exactly. So, I felt like, just in case, you never know in this building what happens, that it would be good for me, again, Act 32 was a bill that I introduced and worked I deeply felt that I wanted to take that responsibility on to make it right. And so, I introduced it on its own just in case something went sour in this building and wanted to just have it added. So that's kind of, you'll make the decision as it goes.

[Senator Alison Clarkson (Chair)]: Yeah, you have it at the moment in

[Representative Emily Krasnow]: 20 We do. So we can, and so

[Senator Alison Clarkson (Chair)]: people, it- It could just live and ask to

[Representative Emily Krasnow]: say- It is, but I like to come in and say hi, so I didn't want to say, but you can make that decision.

[Senator Thomas Chittenden (Member)]: So what you're really saying is you're killing S230 and you want this language to live, so that's why you sent this bill over. Right.

[Senator Alison Clarkson (Chair)]: No. She loves the fact that

[Representative Emily Krasnow]: it came over. Yes. I'm thrilled it came over, but I also wanted to come and say hi. And, this was introduced and passed unanimously in the house, as well, because I just thought you can't have enough of it. But no, we will not, we will be working on it, but, hello.

[Senator Alison Clarkson (Chair)]: Great day.

[Senator David Weeks (Clerk)]: Yeah. Just a question. So I think we we did take quite a bit of testimony of this to just went out. I'm wondering, though, if we altered the language, can you can you reflect on the changes that we made that don't 100% duplicate what's in your Sure.

[Representative Emily Krasnow]: Yeah. So the bill that I introduced and, was passed unanimously in the House is different than the language that came out of your Senate committee. The language that I had was how it was originally worded, but your committee, as you know, after the testimony made the decision to, and Senator Chittenden, was the reporter of the bill both up in our committee and on the Senate, made note of that to our committee, the changes. So, S-two 30 as it arrived to us was with the changes that your committee made.

[Senator David Weeks (Clerk)]: Right, so my question is, what are your thoughts on that, on the difference in language?

[Representative Emily Krasnow]: So, I personally, prefer the language, that I introduced, but I will be honest with you. Our committee, in S230 has changed it back to the original. So, that is where we're at right now, that after we had testimony, our committee felt like we wanted this language in S230, so that when it comes back to that will be what will may happen, what may be decided, whether that brings you to an issue or otherwise. Our committee So, you've already taken action on S230. Arish, so if you can talk about Yeah, so revised version of S230, the committee, not me, made the decision. We wanted the language to be this language. Not what was passed.

[Senator Alison Clarkson (Chair)]: Okay. We'll chat with Sophie about the key. You will. Right.

[Senator Thomas Chittenden (Member)]: Any additional reasons for the committee conversation went up at that point?

[Senator Alison Clarkson (Chair)]: Yeah. I mean, curious why

[Senator Thomas Chittenden (Member)]: rejected Not

[Senator Alison Clarkson (Chair)]: rejected. Well, mean, rejected strong- No,

[Representative Emily Krasnow]: yeah, rejected. Understandable. You would have to, I was not one of the folks who spoke up specifically, and Sophie may have better, my memory's not as sharp as it used to be, but we felt like the self asthmatic diagnosis- The self attestation. Yes, was sufficient, and it wasn't just one party or another, was the entire affinity felt that that was important to have in there, and the Attorney General's office, as well as the network, did testify that they prefer the language in August, but again, that will be up to when it comes back to you, but as it stands now, in our revised version, it did go back to the original lightweight.

[Senator Alison Clarkson (Chair)]: Wow, so you've already moved it.

[Representative Emily Krasnow]: We are. We are moving on it. As far as that bill goes, there's, that was-

[Senator Alison Clarkson (Chair)]: Oh, let's see what other labor pieces you put on there.

[Representative Emily Krasnow]: There was one piece that we had just while we're here and work with all friends. There was another piece that was being discussed of adding, but, yesterday it was decided we would not be adding. So, we're not, I also do not like Christmas trees weighing things down, right? Like, we don't want to add a million things to that, so we want to be thoughtful about what we add to it or change. So, as of now, the only change is that, but, there was, I believe you're familiar with the extreme temperature bill.

[Senator Alison Clarkson (Chair)]: Yeah, but I think you've decided not to. Correct. So, that

[Representative Emily Krasnow]: was decided yesterday. There will be some other discussions, but as far as, there was not the support of the committee to add that to the So, but as of now, those are the changes. But that's why I'm here. So, we passed it on our own through the House just to make sure this is very important to me that we close that loophole or other things and align with the federal standards, and as the original author of the bill, I was absolutely, excited to continue that work.

[Senator Kesha Ram Hinsdale (Member)]: Right. Well, it sounds like it will continue.

[Representative Emily Krasnow]: In one way or another, you'll see it again. Right. And so you can make those decisions, I also just wanted to come say hi.

[Senator Alison Clarkson (Chair)]: Thank you. Oh, we appreciate.

[Representative Emily Krasnow]: And it's a short walkthrough, right?

[Senator Alison Clarkson (Chair)]: So yeah, it's something we're very familiar with. Thank you very much, Ms. Emily. We shall see you soon. And it is one of our few labor vehicles.

[Representative Emily Krasnow]: Oh, that's true too.

[Sophie Zdatny (Vermont Labor Relations Board)]: Sophie, welcome. Good morning. Sophie Sedatney for

[Senator Alison Clarkson (Chair)]: the Office of Emergency and Counsel. But most importantly, before you start, do you have updated news for us on the Anderson Pibb?

[Sophie Zdatny (Vermont Labor Relations Board)]: Not yet, no. Actually, 08:30 was We the should leave today. I haven't checked since I've been here at the State House, so maybe something's happened in the

[Senator Alison Clarkson (Chair)]: last Well, hour and a half. Hopefully something's happened. It started at 08:30, so Okay.

[Sophie Zdatny (Vermont Labor Relations Board)]: Maybe there's a new little Anderson in the world, I don't know. We're hopeful. All right. So, do I have permission to share my screen? Yes?

[Senator Thomas Chittenden (Member)]: Did she share her screen?

[Senator Alison Clarkson (Chair)]: Of course. Okay. Just checking. How does lever actually use the ants?

[Sophie Zdatny (Vermont Labor Relations Board)]: I always ask. I know

[Senator Alison Clarkson (Chair)]: you're also polite, but you always have So

[Sophie Zdatny (Vermont Labor Relations Board)]: as noted, this seems very familiar, and what this is essentially doing is adding some language that was in, that's now currently in the Grant on Family Leave Act to the Fair Employment Act. I will say the Attorney General's Office was very clear when testifying in House General and Housing, the distinction between the two statutes, so the Parental Family Leave Act is providing a benefit to employees. This is providing protection to employees. So it's a different, you know, it serves a different purpose. Again, you've seen this before, but right now under Fair Employment Practices Act, there are a number of protected categories. One of the current protected categories is crime victim. And as you can see under the definition, you need a relief from abuse order, an order against talking or sexual assault, an order against abuse of a vulnerable adult, an affidavit filed by law enforcement official. So these are all things you need at court, some interaction with law enforcement or with the court system, and the testimony has been that often survivors of domestic violence, sexual assault and stalking do not seek, you know, don't go to the police, don't file in court, And so this is providing a way for them to let their employer know that they are a victim of domestic violence, sexual assault, or stalwart victim, and lists out some of the documentation they can use. And again, court or law enforcement, domestic violence, sexual assault or stalking assistance program, legal, clerical, medical or other professional, and then the self attestation. That was where the self attestation was the piece that was controversial in this committee when we were considering S230, and you had added language to S230 that adds a self attestation shall include the following language above the person's signature and date. I declare that the above statement is true and accurate to the best of my knowledge or belief. I understand that if the statement is false, I will be subject to the penalty of perjury or other sanctions in the discretion of the court. And so this does not include that language. And as representative Kresnow said, currently, general and housing is still working on s two thirty. They had they have not finalized it. But as of right now, they have requested to remove that additional language for everything. And just revert back this Roman at four. Right? Right. And, again, I think part of it is to make sure the language is the same, so there isn't a mismatch. Because right now, the purpose of this is to address the mismatch, so it's to avoid creating another mismatch. Yeah.

[Senator Thomas Chittenden (Member)]: That makes sense. So this is the protection language and the other one is the rights language, and that would be keep our language in their house.

[Sophie Zdatny (Vermont Labor Relations Board)]: Right. They just would not be the same. The other piece that there's been testimony on is to the concern around somebody lying is, again, this is to do with protection against discrimination or adverse employment actually being taken on the basis of somebody's protected status. And if someone is shown to ably, whether or not you have the language that this committee had put in the bill, an employer could still discipline an employee for lying. Mean, that could still be a determinable offense. So that language doesn't really change anything. It may have a chilling impact, discourage somebody from lying, but it may also have a chilling impact in discouraging people from coming forward, at least that was the testimony that in general has been.

[Senator Thomas Chittenden (Member)]: Would you to be added to

[Senator Randy Brock (Vice Chair)]: the children?

[Sophie Zdatny (Vermont Labor Relations Board)]: Right. It's just another.

[Senator Alison Clarkson (Chair)]: Doctor. Randy.

[Senator Randy Brock (Vice Chair)]: Up in general housing. Who testified to that effect? Do you know?

[Sophie Zdatny (Vermont Labor Relations Board)]: Had- I think they had many of the same folks that you've heard from. So Emily Adams from the Attorney General's Office, Charlie Glissamond, and I'm not gonna remember all of them. I wasn't in the room for all the testimony, but they

[Senator Randy Brock (Vice Chair)]: Yeah, I'm just trying to understand the basis for the person.

[Sophie Zdatny (Vermont Labor Relations Board)]: So I think it's making

[Senator Randy Brock (Vice Chair)]: that claim, was there any evidence to support that?

[Sophie Zdatny (Vermont Labor Relations Board)]: I think that was similar. I think the attorney general's office was more concrete that they didn't testify in general and housing, which I don't recall them saying here, was that they have had people come forward with claims under the Fair Employment Practices Act where they believe they were being discriminated against on the basis of, you know, being a survivor, but because there wasn't that specific language in the Fair Employment Practices Act, the attorney general's office wasn't in a position to move forward on it because they didn't have a court order or police affidavit. And I'm not sure we heard that same testimony. Yeah. Think that was new in general. Don't recall it. Because that was I I believe that was the motivating factor for why they were pushing for these changes because they have actually seen that happen where someone is a victim of sexual assault, domestic violence, stalking, but didn't qualify as

[Senator Alison Clarkson (Chair)]: a crime victim. Right. Well, we self attest to many things. I think one of the things I wanna think about is the next couple days is how many things we self attest to. Every week we self attest to our This is defensive, every week, every you know, our ethics and sexual harassment panels here in the State House are independent and self attestation. I mean, we we do self attestation. We trust generally. I mean, whole system is designed that you are innocent until you prove a guilty, and so you self attestation extends that trust, I think, in a way. Thomas?

[Senator Thomas Chittenden (Member)]: So is a signature a self attestation when you sign a document?

[Sophie Zdatny (Vermont Labor Relations Board)]: Right, so I mean again the way it's currently proposed is that the employee would be submitting something to the employer and would be submitting a statement where they're attesting this is the situation, this is what's happened to me and if it turns out this is fabricated, whether or not you have the perjury language in there, the employer can take disciplinary action on the basis of the misrepresentation. I mean, lying is never unacceptable where to go in an employment situation.

[Senator Alison Clarkson (Chair)]: And lying in this case is so damaging to everybody.

[Senator Thomas Chittenden (Member)]: So the language, the original language, I'm reading

[Senator David Weeks (Clerk)]: it right now, and it

[Senator Thomas Chittenden (Member)]: says at the end, for which no further corroboration shall be required unless otherwise mandated by law. So that just means the employer can't put an additional requirement in. Right.

[Sophie Zdatny (Vermont Labor Relations Board)]: Exam level of acceptance.

[Senator Thomas Chittenden (Member)]: Are there other laws that are relevant to something like this?

[Sophie Zdatny (Vermont Labor Relations Board)]: I think that was really just a catch all, in the event there is something I'm not aware of or either entry.

[Senator Alison Clarkson (Chair)]: Right? So we will we just now walk through this. We will take it on board, and we well, I'd love to have it sit with everybody for a bit and decide what we wanna do.

[Senator David Weeks (Clerk)]: Well, sounds like it's in play.

[Senator Alison Clarkson (Chair)]: In play at 02:30. So Yep. 02:30 is I'm in assuming that 02:30 will be our vehicle for this language just because it also has other labor pieces on it. So it's our one more comprehensive labor bill, so it would be great if we could actually keep S-two 30 as the vehicle. So it will if it comes back to us, we'll probably go into a conference committee, we'll discuss it further. This gives us the opportunity to discuss it further and figure out how we're gonna respond when it comes back to us. And it may have more labor pieces on it, although I don't think so at the moment. My understanding of the chair is that it's gonna be clean other than changing this language.

[Sophie Zdatny (Vermont Labor Relations Board)]: And there is another piece that's in play in general housing too.

[Senator Alison Clarkson (Chair)]: Another labor piece? Yes. That they put on this bill or they

[Sophie Zdatny (Vermont Labor Relations Board)]: find another one? That's $2.30. Yeah.

[Senator Alison Clarkson (Chair)]: Great. Okay. I will discuss it with the chair. And if there are any other labor pieces that we need to chat the chair is coming in tomorrow morning, although we have this 09:30 celebrating chopper that's happening. Yes. I'd have to be at.

[Representative Emily Krasnow]: Yes. The pace there's gonna be oh, he could be watching.

[Senator Kesha Ram Hinsdale (Member)]: It's well

[Senator David Weeks (Clerk)]: That yes. While we have representative Kesha

[Senator Thomas Chittenden (Member)]: Ram thinking that you might wanna strip this from s two thirty so that No. Made us a separate

[Representative Emily Krasnow]: I think no. No. Not at all. And you will be getting s 02:30. I think it was just, I, this was a backup, emergency backup that I wanted. Know, I don't get enough. Yeah, no, I was an emergency backup in case, you never know what happens in this building and this was really important. We clean this up to me and as the original author. So, hey, you could also use this as a vehicle now for you if you want.

[Senator Alison Clarkson (Chair)]: Oh, don't worry.

[Representative Emily Krasnow]: I'm thinking about it. But no, we have no intention of expecting you I have no intention of expecting you to pass this like this, as its own bill. It will lie here, but we will be sending you, and then you will decide as a committee how you feel about, but as of right now, as Sophie mentioned, that's our only change. I'm not putting anything else on the bill, I can't control everyone else, so, you know how it goes. But you will not be getting extreme temperature, on it. Yeah. That's what I understood yesterday for being Right. So, if other members put things on or floor amendments, that's their prerogative, but I personally, this was the only change that I-

[Senator Alison Clarkson (Chair)]: Great. But you wanted to give us a vehicle.

[Representative Emily Krasnow]: Right. Now if you have other labor ideas, have at it and strip it out.

[Senator Alison Clarkson (Chair)]: Well, while we're on-

[Representative Emily Krasnow]: But no, anyway, you don't it will be in the bill, Senator Chittenden. Yeah. And that was unanimously agreed on. And this will lie to however I you decide. Unless you want more floor time.

[Senator Alison Clarkson (Chair)]: No. He said he said good, floor time.

[Representative Emily Krasnow]: I have two. After doing landlord tenant, I don't think I'll be reporting other bills for the rest of my career. No.

[Senator Alison Clarkson (Chair)]: Just kidding. That that is not true. You got it through, and you have a solid bill.

[Representative Emily Krasnow]: Well, yes. That that was never the issue.

[Senator Alison Clarkson (Chair)]: Yeah. So, Sophie, while we're on labor, if you would we have time for a quick update on the labor relation board decision that As was made spicy as that sounds.

[Representative Emily Krasnow]: I'll see

[Senator Alison Clarkson (Chair)]: you all later. Emily, lovely to see you.

[Senator Kesha Ram Hinsdale (Member)]: Thank you.

[Representative Emily Krasnow]: Thanks everyone.

[Senator Alison Clarkson (Chair)]: Given that we have been discussing this and with labor, do you want to give us just a brief update on the Labor Relations board decision I

[Sophie Zdatny (Vermont Labor Relations Board)]: saw the news story, I have not read the decision. My understanding is, and again, I say this with the caveat that I have not read the decision, my understanding is that what the board found was that working from home or that policy is a working condition, as a working condition, then it's subject to negotiation with the union, I have to say doesn't surprise me that that's where they landed up. Vermont has a very expansive definition of working conditions, unlike in many other states or the federal, at the federal level, and so almost everything is ultimately negotiable. Challenge for an employer is when you've got one issue, it's very hard to negotiate because you have, you know, it's not in the bigger context of a full bargaining. So it's very like, what do you give up in order to get something that you want in terms of a policy? But that's my understanding. My understanding from the news report is also that it's being appealed to the Supreme Court, so it'll be interesting to see if the Supreme Court sort of, which normally is very deferential to the Labour Relations Board, so it's unusual for the Supreme Court to overturn the Labor Relations Board. Right. And they have a different view on, you know, whether working conditions is as expansive as the Labor Relations Board.

[Senator Alison Clarkson (Chair)]: Yeah. Thank you. It was interesting. It's also interesting because we all confirm and discuss the people that the governor appoints to the Labor Relations Board. It was interesting, his response yesterday, which I thought was unfortunate. I don't think you blame. I mean, accept a decision and then you decide if you're gonna appeal it or not, but complaining about a board that he solely appoints is frustrating. Anyway, I can agree, disagree. You know, he so there we are. It will be interesting to see what the Supreme Court does with it, but it's an interesting level of labor issue.

[Sophie Zdatny (Vermont Labor Relations Board)]: I know historically, Tim Noon, when he was the executive director of the Legal Relations Board, always liked to point out how very, very infrequently the Legal Relations Board was overturned, so I don't know if that's changed over the past couple of years, but he always made

[Senator Alison Clarkson (Chair)]: it important to Well, this vision came up.

[Senator Randy Brock (Vice Chair)]: One of the things that kind of surprised me is just the number of people, and I don't know what the total number is, who are Vermont State employees who are using this out of office provision and who actually live out of state. Just wonder if that's something that's a concern to anybody.

[Senator Alison Clarkson (Chair)]: It depends on their expertise. And we've also had a number of employees who during of course, COVID did move out of state for a variety of people who began as who I know worked for various agencies, departments who have long work relationships here and are trust you know, key people in those agencies who continue to work very productively, who just happen not to live in Vermont anymore. But I also know from ADSs, from the Agency of Digital Services, that they have expertise, technical expertise, is also not in Vermont. They've had a very hard time finding that expertise in Vermont, and they've been able to hire them, not a mistake. So there are a lot of reasons for each

[Senator Randy Brock (Vice Chair)]: one The reason that industry typically does is they eliminate a job and locate that job in Philippines or China. Yeah, Bob.

[Senator Alison Clarkson (Chair)]: But I don't think we have too many for that.

[Senator Randy Brock (Vice Chair)]: I guess what I'm saying is, are there implications to this that are a little broader than we're just thinking about right now? I

[Sophie Zdatny (Vermont Labor Relations Board)]: would say one of the concerns is if you have out of state employees, have to comply with whatever their tax laws are, whatever their workers' compensation laws are, and so that, I just noticed from my prior experience, that is very challenging. There were some states where you really can't have people located because their workers' compensation system does not allow you can't join their workers' compensation system as an out of out of state entity. So there are some states. But, again, it can get incredibly complex from a payroll perspective. If you've got to take out, you know, a municipal tax or, you know, a different state tax, it can get very, very complicated. Well, mean,

[Senator Kesha Ram Hinsdale (Member)]: think that frankly, whether it's

[Senator Randy Brock (Vice Chair)]: our day for everyone, I would think that, in fact, trying to understand the complications associated with immigrants in terms of responsibilities, etcetera, etcetera. I think somebody in the works said ought to know about it. And they're responsible for labor, they also ought to

[Senator Alison Clarkson (Chair)]: know about it. That's why I asked. I think we that's why it's important, I think, for us to stay on top of this. So clear.

[Senator Randy Brock (Vice Chair)]: And whether it's stay on top of it or to request a study by the Department of Human Resources to go through the implications and responsibilities and so on that the state has as a result of this decision.

[Senator Alison Clarkson (Chair)]: Yeah, and I've heard that, but it's interesting.

[Senator Randy Brock (Vice Chair)]: And it's not just the decision that was made by the Labor Relations Board, it's the decision that was made by the administration where they began to allow this practice in the first place.

[Senator Alison Clarkson (Chair)]: Well, it a negotiated piece in COVID with the VSEA, so I think that's special for the VSEA too.

[Senator Thomas Chittenden (Member)]: With the

[Senator Alison Clarkson (Chair)]: remote? The Vermont State Employees Association. Yeah. It's a laborers.

[Senator Randy Brock (Vice Chair)]: It is, but understanding what the state's responsibility is to the legislature. I would think that we have responsibility to understanding what issues that affect the state, affect legislation that we might oversee that would have an impact, and just to know that the state is very good, is understanding what it is we've gotten ourselves into.

[Senator Alison Clarkson (Chair)]: So we could, let's chat about how we would proceed with that. We can have that. I'm not sure where our goal is in that, but we could certainly have that and discuss it. Here is a vehicle for study. So and we had right in front of us at very that very opportunity. We just lost one member who I know is interested in hearing. Thank you, Sophie. Please text us when you hear anything about our news. Good good morning, everybody. And we are gonna shift gears to our genetic data privacy bill, and we are Sophie is There's that. Yeah. No. Genetic data privacy. So I think that's right. Okay. Right. So we are gonna shift gears to h six thirty nine, our genetic data privacy bill, and we're going to welcome Richie Engelhardt to the table. And, Richie, welcome from ancestry.com. You've been here before. I have. It's do you

[Sophie Zdatny (Vermont Labor Relations Board)]: have have you

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: in this room?

[Senator Alison Clarkson (Chair)]: It's good to have you back.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: Always nice to be in Vermont. I love the drive over from Burlington. So good morning. Uh-huh. No. I do. It's so I live in Chicago now. It is perfectly flat. We have no mountain, and I miss them. So it it actually is lovely.

[Senator Alison Clarkson (Chair)]: Is that where ancestry.com is headquartered?

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: No. We're headquartered in Lehi, Utah, just South of Salt Lake. Plenty of mountains out there.

[Senator Alison Clarkson (Chair)]: Of course you are because who would be interested in this? But the Mormons. Yeah. Yeah.

[Rick Segal (Office of Legislative Counsel)]: We thought you were alluding to

[Senator David Weeks (Clerk)]: the fact that there's actually two states here. There's Burlington and then

[Senator Alison Clarkson (Chair)]: there's Yes. That's what that that's what David thought. I was we're thinking you're making a

[Rick Segal (Office of Legislative Counsel)]: joke. Oh.

[Senator Alison Clarkson (Chair)]: That is often a joke. Because that's it's true. So David, explain.

[Senator David Weeks (Clerk)]: Well, there's Burlington. It's the economic engine of the state, and then there's the rest of the state that's erupted.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: Well, there's Chicago, and then there's Illinois. Yeah. It was very similar, but I always

[Senator Alison Clarkson (Chair)]: We have a similar similar thing, and so that's about. But anyway, it is great to have you welcome. Introduce yourself and share with us how you your feelings about the about this important bill.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: Yeah. Absolutely. So, my name is Richard Goldhart. I'm the head of government affairs at Ancestry. Ancestry's mission is to help everyone discover, preserve, and share their family history. And we do this in two primary ways, through our best in class genetic testing product and our family history service, which is powered by more than 65,000,000,000 historical records.

[Senator Alison Clarkson (Chair)]: 65,000,000,000. It's individual records.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: These include vital records, things like birth, marriage, and death certificates, census records, military records, archival records, basically anything that we can pull in that helps our consumers add texture and context to their family trees.

[Senator Alison Clarkson (Chair)]: So may I just interrupt Mhmm. One brief second, Richie, to ask you, have you sent your testimony to Pierre again? Yes. Great. So we post. Okay. Great.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: So in Vermont, this has led to longstanding relationships with various state agencies. Through our public private partnerships here, we have digitized nearly 13,000,000 records and are working on 19,000,000 more in partnership with the State Archiving. We provide this service at no cost to the state and everyone wins. Ancestry saves the state millions of dollars in digitization costs, we are able to provide our consumers with access to historical records from the state as soon as they're publicly available. We also provide every Vermont resident with free access to our ancestry.com and newspaper.com collections through the State Archives website. Our partnership here is among the most robust that we have with any state in the nation. And as we consider the proposed Genetic Information Privacy Act, we hope to productively partner again with Vermont to provide its residents here value in the form of the strongest protections for genetic privacy in the country. This bill is the result of work we've undertaken for the past decade. First, by convening other consumer testing companies and privacy advocates to promulgate industry best practices in cooperation with the future privacy forum, and then translating those best practices into legislative form when states move to legislate in this area starting around 2020. The policies in this bill reflect our practices all along, requiring separate opt in consent for any collection, processing, use, or sharing of genetic data, and providing consumers the right to delete their genetic information and biological samples at any time. As introduced, we supported the policy provisions in this bill completely. House amendments taken late in the committee process have raised a few concerns that we believe the committee will need to address detailed in the memo that we submitted today. First, the House added a detailed definition of biometric data and then made biometric data subject to various provisions in the bill. Upon closer inspection, the original references to biometric data were exclusively focused on the selection of historical biological samples. That's the correct focus and the correct verbiage for a genetic privacy bill. We request that the committee strike the definition of biometric data in the bill and replace all references to biometric data with biological samples. And while we support the regulation of biometric data, it should be uniform for all companies and not nested within a bill that regulates direct to consumer genetic testing companies alone. Doing so would lead to any biometric data that we have on our site being regulated differently than the biometric data held by our direct competitors who do not offer genetic testing even though it's the same category of sample.

[Senator Alison Clarkson (Chair)]: So help us because we are new to this bill and new to this issue. Us to appreciate the difference between biological sample and biometric data.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: Yeah, so biometric data is typically things that are used to immediately identify someone based on biological characteristics. So facial recognition, iris scans, fingerprints, things that you can measure the size and shape of and compare it to a reference panel to immediately identify someone. You can't really do that with genetic data. Genetic data is something that you're looking at the qualitative aspects of, where the A's, T's, C's and G's all line up. It's not a measurement of the size or shape, it's actually a quantitative analysis of what is in someone's genetic profile. So biological. And the biological sample is just that, it is the sample that we use to extract DNA from.

[Senator Thomas Chittenden (Member)]: Biometric is nothing that you take, biological samples are physical things that you extract. Right,

[Senator Alison Clarkson (Chair)]: and biological sample is interior, although it does have physical

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: manifestations. Biological samples or

[Senator Alison Clarkson (Chair)]: No. Well, but your DNA has a physical ratification. Yeah. So that it biologic there is an aspect of the biological piece in your biometric data is I guess what I'm trying say.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: Yes. And most states have triaged this by regulating biometric data and genetic data altogether and alongside. Right? So if you look at most state omnibus privacy bills, they have a definition for biometric data, which captures all of those facial recognitions, fingerprints, all of those things. They have a definition for genetic data, and both are included under the bucket of sensitive personal information.

[Senator Alison Clarkson (Chair)]: And so why are you opposed to biometric data? Oh, Thomas.

[Senator Thomas Chittenden (Member)]: So if I'm following you, I'm sorry I stepped in late, you just want us to split out the genetics from the biometric data to have a separate definition for

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: genetic Yeah, totally. And actually, I was gonna get to this next There's another bill representative Priestley has that is an omnibus privacy bill, where they're going to regulate biometric data uniformly for all companies. What we're saying is don't have different rules for DTC testing companies than you would have for everybody else. And it would uniquely impact us because we have our family tree builder on our family history site. People can upload photos, they can tag those photos with the names of their family, and you start getting close to biometric processing, which we don't do with those photos at the moment, but it does make us nervous to have it in the bill when it's not related to the genetic testing product. Sure.

[Senator Thomas Chittenden (Member)]: Tease that out a little bit. I'm looking at the language right now. The definition of biometric data means generating the technological processing of a consumer's unique biological, physical, or physiological characteristics, so you want that biometric data to not dish in the DNA extraction for biological and physiological Well, define genetic data in the bill, and that's where that is covered. Right.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: And when we're talking about sample storage, it's the biological sample you don't want stored in a country of concern like China or Iran or Syria.

[Senator Thomas Chittenden (Member)]: I guess I'd love to get that written testimony to go back to what you said. Yeah. To separate biometric out from DNA. I thought that's what I heard you say.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: Of course. Say you regulate biometric data, but do it uniformly. And that is being worked on increasingly, though.

[Senator Alison Clarkson (Chair)]: That's in the well, it's it's it's s it's our data privacy bill.

[Senator Thomas Chittenden (Member)]: S-sixty. S-seventy.

[Senator Alison Clarkson (Chair)]: Yeah. Next,

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: the requirement that service providers and third parties delete genetic information needs to be qualified. We use US based laboratories such as Quest, Illumina, and LabCorp to sequence genetic data. Under CLIA, those labs are required to retain a sampling of each category of tests the lab performs to be used for validation purposes. We recommend providing the same exception for compliance with other state or federal law that appears elsewhere in this bill for the companies themselves. So when they expanded the notification of the deletion request to the service providers, and third parties, they didn't copy over that part that says unless it's needed to comply with state or federal law, and we think it needs copy to that section as well. Okay. Thomas?

[Senator Thomas Chittenden (Member)]: Just, I wanted to slow you down because I need to understand more. I think you heard you say CLEO and then required. They're required, just required by who?

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: So CLEO is a federal law. It's the Clinical Laboratory Improvement Act of 1988. Okay. And when they run tests, particularly tests that are related to health, they have to save a sampling of the test to validate that the test is working properly.

[Senator Thomas Chittenden (Member)]: Mandated by

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: federal Mandated by federal.

[Senator Alison Clarkson (Chair)]: Yeah.

[Senator Thomas Chittenden (Member)]: I'd love to understand more of those federal mandates and fledged counsels listening to this. Yes.

[Senator Alison Clarkson (Chair)]: I it's either Rick or Dan. That's right. Yeah.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: And if you look elsewhere in the bill where our deletion mandate in the bill as the company itself has that exception that says, except where required to comply with state or federal laws. Right? They just didn't copy it over to the service provider and third party section when they added that in. Additionally, if a consumer opts in to research, they may withdraw consent for future research projects. However, if they're included in a research dataset for a project that is already underway or completed, they may not withdraw data that's already been analyzed or included in those research datasets as if to compromise the integrity and validity of the study. And that's explained in the informed consent that they sign when they sign up to participate in the research. So what we're proposing is that we put an exception in for those two narrow cases where if it's already in a research dataset that the consumer previously provided informed consent for or is needed to comply with state and federal law, those are outside of the deletion requirements of the development.

[Senator Alison Clarkson (Chair)]: Yeah, Thomas.

[Senator Thomas Chittenden (Member)]: Did you testify to this in the House?

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: So some of this is new. They were the House amendments after

[Senator Alison Clarkson (Chair)]: a second. Yeah. This happened in the House amendments on the floor that they then took into committee. But those amendments are done very last minute. We probably didn't have a chance to weigh in.

[Senator Thomas Chittenden (Member)]: So the last thing I'll say is when they took up this bill previously, I do have a lot of questions about this mandate to delete data because I I think you're addressing them. So I I do hope that we, will translate what you're saying into some language to consider for the new bill.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: And and I provided language in the memo. So, what we think will in both. Yeah. Well, makes it easier to find.

[Senator Alison Clarkson (Chair)]: Less. Yeah. That's right.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: And and just to continue, I wanna be very clear. We support codifying the policy provisions in this bill. But in reality, the only thing that changes for Vermont consumers if this passes is that companies like Ancestry can be sued for administrative violations due to the inclusion of a private right of action. Ancestry and our largest competitors, which include 23andMe and MyHeritage account for more than 90% of the direct to consumer genetic testing market in The US, all have uniform terms of service and privacy policies that conform to the existing 15 state genetic privacy laws on the books. We are already contractually bound to do all of the things in this bill for around consumers and can be sued if we breach those contracts. And while we appreciate testimony from my friend Todd behind me from the AG's office last week that commended Ancestry and asserted that the enforcement would be similar to the age appropriate design code bill. We'd respectfully note that those bills and their enforcement are markedly different. First, no one gets into our genetic database without providing a substantial amount of spit and separate opt in consents that detail their rights on how we may use their data. It's not an incidental collection nor is it entering into a passive agreement to our term solely by virtue of visiting our website. Everyone knows what they are signing for with us and must provide several different consents in the sign up flow, and we are bound to the agreements that we make in that process. Unlike the age appropriate design code bill, the Vermont legislature is not changing the rules on a vast ecosystem that will need dispersed enforcement to ensure thousands of entities are complying. There are three major services in The US for genetic testing. These tests have been on the market for eighteen years. There has never been a major privacy violation by any large company in the marketplace. And this bill codifies existing practices that no one has asserted the companies have violated in nearly two decades. And I know you're thinking, what about 23andMe?

[Senator Alison Clarkson (Chair)]: Sadly, that is exactly what we're And

[Senator Thomas Chittenden (Member)]: that's right there.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: While it's true they had a data breach in 2023 and were found liable under various state data breach laws for not reporting it in a timely fashion, that's a separate issue from the privacy bill that's before you. There was broad concern regarding privacy protections last year when the company filed bankruptcy and the AGs banded together to petition the courts to ensure that the privacy promises 23andMe made survived their reorganization. But at the end of the day, the company's founder formed a nonprofit and purchased the company out of bankruptcy. The same leadership, terms, privacy policies, user experience, everything was the same before and after the bankruptcy aside from the financial structure of the company. There was no privacy harm in the course of that bankruptcy, and the investigation into it provides a real encounter to the argument that the AG would need more investigative bandwidth. While Vermont was one of many states that petitioned the court, the investigation was co led by California and Connecticut.

[Senator Alison Clarkson (Chair)]: But that I mean, we that was yeah. I mean, I I think that that was such an unusual case, and it did and in many ways, it was a lucky solution that had been both worked on in parallel and luckily came together. But I think that that was a lot of luck that we didn't end up in a serious situation.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: Well, first of all, it

[Senator Alison Clarkson (Chair)]: wasn't Data could have been sold to somebody.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: Reorganization was bankruptcy. It was not a liquidation bankruptcy. The courts have held since the very first.com bankruptcy, going back to the Toy Smart case in the late nineties, that you can't sell customer lists as a standalone asset, let alone genetic customer lists. Right.

[Senator Alison Clarkson (Chair)]: But that's not a separate qualification, is it? Genetic data

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: material? The database itself was never on the marketplace. It was the company that was on the marketplace. And if anybody had followed what Anne

[Senator Alison Clarkson (Chair)]: was That's up who owned the database. The company owned the database.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: Right, but you're selling the company in whole, not the data as a So standalone asset, you're changing the financial organization of the company. And Anne was very transparent throughout that she was trying to get into a take private deal with her board and couldn't, which is how they landed in bankruptcy court. Neither here nor there, and like I said, eighteen years, we've had one case where, that the best use of the bankruptcy courts? No. Was there a privacy harm there? Also, no. Had Regeneron prevailed, they would have also been bound to the laws that were passed in these 15 states and what was in the terms of service and the user agreements. So I think it's hard to say what would have happened had Regeneron prevailed in that bankruptcy, but they pretty much said that they were looking to maintain that as a separate standalone entity, they would market, or license rather, data back to themselves that consumers had consented for research, and only the consumers had consented for research. So we know that in the 15 states with Asian enforcement, there hasn't been a resource drain, There haven't been investigations ongoing year after year. We do know that in one state with a broad primary that had of action on genetic privacy, we've had to fight various frivolous claims brought against us. And at this point, I'm gonna turn over to my chief privacy officer, who I believe has joined us by Zoom. Is she behind me?

[Senator Alison Clarkson (Chair)]: She's not yet, but I bet she's. That

[Senator Thomas Chittenden (Member)]: one state I assume is California.

[Senator Alison Clarkson (Chair)]: Is Illinois. Illinois. Oh, it's your very own state.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: It is. So Illinois, BIPA, and GIPA were both passed in 2008, and that law was written before the DTC tests were even available on the market. So they weren't contemplating us necessarily when they passed that. And look, in a perfect world, agreed that anybody should be able to go to court and pursue revenues. But unfortunately, PRAs come with costs at companies like ours, which even the AG's office commended us on how well we've done with setting the standard for privacy in this area. So I'll turn it over to Lisa. She can give you some data and real world examples.

[Senator Alison Clarkson (Chair)]: Welcome, Lisa. If you'd be kind enough to introduce yourself and go for the casting.

[Lisa (Chief Privacy Officer, Ancestry)]: Absolutely. Thank you. Thank you, Claire Clarkson and members of the committee. I am Lisa. I serve as the Chief Privacy Officer in Ancestry, and I joined. I heard a little bit about Illinois, and we'll talk about Illinois' GIPA and BIPA in a second. But I do want to underscore what I know that Richie mentioned that we do support the privacy goals of this legislation. Our users trust us with their family stories, and we don't take that lightly. But to protect the trust, we need an enforcement model that works. We're concerned that private right of action in this bill shifts the focus from real data privacy and security to litigation, and we believe it'll actually undermine the privacy goals of this bill that this bill is working so hard to achieve. Our position rests on three primary points. The first is that we strongly recommend keeping enforcement in the hands of the Attorney General. The Attorney General has the expertise to distinguish between a technical administrative error and actual consumer harm. Private rights of action often prioritize litigation over actual privacy protection, and Ancestry has firsthand experience with this in the case of Kingsley versus Ancestry, a 2020 case. This case followed the acquisition of Ancestry by Blackstone, where we were faced with a massive class action lawsuit. Where plaintiffs alleged that a routine corporate stock purchase a standard business transaction constituted an unauthorized sale of data. This was in fact an Illinois case and because it was under Illinois law, which contains a private right of action, and this PRA also has hefty statutory damages of up to $15,000 per claim, per plaintiff, plus attorneys fees. The incentive simply wasn't there to fix the privacy problem that was perceived. Our position, of course, was there wasn't one, and the incentive was just to secure a massive payout. We spent three years litigating this in federal court defending what we perceived as a transparent business transaction that resulted in zero data being breached, zero data being misused, and zero harm to our customers. And while we did prevail with the Seventh Circuit eventually, the ruling by the Seventh Circuit, by the way, was that there was no compulsory disclosure, simply a business transaction. It took three years to get there, and that was three years of judicial resources to reach a common sense conclusion. And for us, this case is proof that when you include a private right of action, you aren't empowering consumers, you're empowering class action attorneys to target companies over technicalities and business structures that have nothing to do with actual privacy. Without a private right of action, a claim like this could have been resolved efficiently through an attorney general review in a matter of weeks rather than years of costly litigation. Our second point is that companies face aggressive, when companies face aggressive litigation risk for minor technical ambiguities, we're forced to manage that risk by limiting or even disabling certain features in these specific states. This doesn't create better privacy for those states. It just creates a second tier digital experience. I'm sorry, digital experience for the constituents. If a private right of action remains in this bill, we'll be forced to geofence features in Vermont simply to mitigate exposure to meritless claims. And to be specific about what this could look like, we have features that we believe could be subject to misinterpretation or costly litigation. One would be disabling automatic DNA match notifications. For example, even though we require our users to specifically opt into DNA match notifications, private right of action allows a plaintiff's attorney to argue that even single notification sent requires separate disclosure notifications or approvals so every time there's a match for example the user in theory could be required to authorize that rather than a single upfront notification in the user flow Under a gipra style framework, these per violation damages could reach hundreds of millions of dollars over a feature that our customers have actually asked for. Another feature that could be impacted is restricting integrations where our users often ask us to link their data with third party genealogy tools to build their trees, but with a private right of action, a third party integration might become too legally risky for us to maintain. It might be perceived as a data share or sale. Another is delaying AI driven insights. Even a slightly, a slight ambiguity in how new AI features are described in a consent flow could trigger a massive class action lawsuit. We've seen these lawsuits in Illinois. We aren't speaking in hypotheticals, and we know that other companies faced with Illinois and other states with private rights of action or that do not allow Attorney General review are forced to turn off certain features like Ring or Google or Meta, which have had to limit or completely shut off features for those residents that the rest of the country gets to enjoy. We don't want Vermont to become a digital island where residents lose out on innovative features simply because of our fear of predatory litigation. The third point is that attorney general enforcement is simply more effective. We believe that attorney general enforcement is far better vehicle for real privacy protection. Attorneys general have the expertise to see the forest for the trees. They can distinguish between a minor administrative misstep and a material privacy violation. Their offices focus on high impact threats like intentional sale of data or security failures rather than generating statutory damages were no injury exist. Attorney General enforcement is also a lot faster for real issue arises, we can work directly with the state to remediate it and to provide relief to consumers immediately, rather than waiting years for a court's decision and appeal. In closing, Ancestry remains committed to transparency and consumer control. We require a separate express consent for the collection and sharing of data. We want a strong bill, but we want to build it's grounded in expert ag enforcement that protects Vermonters without stifling the innovation that they deserve. Thank you for your time, and I will yield the floor back to Richie for any concluding remarks.

[Senator Alison Clarkson (Chair)]: Oh, well, I think we may have some questions before you yield the floor. Yeah. Do you need to go, Lisa? Do you need to go?

[Lisa (Chief Privacy Officer, Ancestry)]: I do not. I am here for you.

[Senator Alison Clarkson (Chair)]: Okay. Well, outside. Thank you. We, as you know, already have a private right of action embedded in our statutes for any consumer challenge. I think this is an additional piece, but we already have that. I'm just curious how many private rights of action cases that you have in the country.

[Lisa (Chief Privacy Officer, Ancestry)]: I don't have that number available. How many cases do we have? I don't have the number available. There are very few states however that have private rights of actions attached to their genetic or biometric privacy bills.

[Senator Alison Clarkson (Chair)]: Yeah, so it doesn't sound like you're and I'm just curious the committee and our legislative council has arrived. Did the committee consider a cure period? I think they did,

[Rick Segal (Office of Legislative Counsel)]: didn't Rutz Segal, opposite legislative counsel, there was a cure period considered by House Congress.

[Senator Alison Clarkson (Chair)]: And then they chose not to include it? Correct. Okay. Do you have other states with cure periods in them?

[Lisa (Chief Privacy Officer, Ancestry)]: There are other states with cure periods. In fact, California has in its comprehensive privacy bill has a cure period for certain aspects of its privacy bill, specifically data security breach provisions, which do allow a cure period before the private right of action kicks in.

[Senator Alison Clarkson (Chair)]: So you would you be more amenable to support the private act right of action if we had a cure period?

[Lisa (Chief Privacy Officer, Ancestry)]: A cure period is definitely a step better to reasonableness. It allows the attorney general to step in and to clearly state their concern and for us to have an opportunity to respond before others have simply the motivation to come in for statutory damages. That being said, we prefer to engage directly with the attorney general for enforcement. We think that's even faster than having a cure period and preferred.

[Senator Alison Clarkson (Chair)]: Okay, thank you. Anybody else have a question for Lisa? Thomas?

[Senator Thomas Chittenden (Member)]: Just for those at home that don't quite know what a cure period is, can people not remember what such a thing is? The people at home.

[Senator Alison Clarkson (Chair)]: Is that a question Yeah, for yeah, I think it would be great. Why don't you?

[Rick Segal (Office of Legislative Counsel)]: So a cure period would be,

[Senator Kesha Ram Hinsdale (Member)]: it depends

[Rick Segal (Office of Legislative Counsel)]: how you draft it, right? I'm trying to remember the House Congress notice, but typically the alleged violator gets notice from the AG or a consumer that there's been a violation or a pledge violation. Upon receiving that notice, the business would have a certain number of days to fix the violation. And I'm remembering more now, about what happened in the house. Their concern was once that genetic data is out there, it's maybe hard for the business to fix that breach, that information has been released. So that's why they chose to not go with cure here, because the sensitivity of the genetic data, that's obviously something you can disagree with, and different breaches are

[Senator Alison Clarkson (Chair)]: Yeah, good breaches that were not actually of the material itself, but might be

[Rick Segal (Office of Legislative Counsel)]: Most of the cure, so the way it was drafted, they're all coming back. Certain breach like the privacy notice, which can be fixed, was within that cure period. That if you don't provide the correct privacy information to a consumer, they would have, I think it was thirty days, don't quote me on that, to fix that, but the more sensitive data, the genetic data, there were no cure period in that draft. The bill you have, it has no cure period at all or any law. Thank

[Senator Alison Clarkson (Chair)]: you Lisa. Sorry, Randy. Question,

[Senator Randy Brock (Vice Chair)]: it was regarding notification of the consumer and consumer's rights regarding privacy. I assume that you prepare notification documentation that you include with your product that goes to the consumer so the consumer understands what his or her rights are. And there are lots of rights regarding privacy. How long is the notification in terms of words or pages or volumes that you have to send to a customer to explain all of this?

[Lisa (Chief Privacy Officer, Ancestry)]: Yes. I think that we all have the experience of receiving privacy notices and scrolling through many pages. And we too have pages of notice, but we also take a multi layered approach with our notification and our transparency. We provide a very detailed privacy notice that is necessarily longer because we look to comply with state specific requirements for disclosure, and including all of the state specific disclosures occasionally leads to a very lengthy notice in order to make sure that we comply with all of those transparency obligations for the written privacy notice. But in addition, where we are collecting sensitive data such as our DNA data, we have notices that are real time in the user flow. So, as the user goes to their computer, for example, to register their sample to send it in, there are disclosures that pop up real time. We add these additional disclosures because of the sensitivity of the data so that yes, there are the longer privacy notices that let's, you know, admit not everyone reads every word of it, including me. I read ours of Taurus, the ones that I'm presented with, but there are the notices that pop up as you are going through the user flow and they remind you of certain limitations or they ask you, do you want us to share this with a third party for research, for example? Do you want us to let you know if you have a DNA cousin within the system and how close of a cousin so that we can incorporate into the user's experience their expectations and protect their privacy? If they choose not to be alerted, that is their right, and in the disclosure that pops up real time, they'll simply say, No, I don't opt into the disclosure or notification. Or in the example I gave about our customers like to create trees and we have a third party plugin that allows a consumer to go in and use a tree maker application that we don't own. That requires a real time user flow. We don't rely on the longer disclosure that the consumer may have read a year ago. There's a flow that pops up and says, hey, there's a third party plug in. Do you want to share your data? It's necessary to share your data in order to create this tree, which seems intuitive, but we want to be transparent that we will now be sharing that data only at the direction of the consumer. So there are different layers of notice. There is a written notice for sure, that's required by law, but there's also a real time notice to make sure that the user knows exactly what's happening with the most sensitive data.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: Yeah, I'll add one thing because Lisa gave a wonderful, very legal answer to that question. We also have a consumer facing privacy center. So if you don't want to read a legal document, you can actually go in and we explain our privacy philosophy. We have several videos on various topics are the most interesting to consumers. Like, what do you do with my genetic data? How do you share it? What are my rights? There's videos on deletion. There's videos on law enforcement access, which Ancestry does not allow. We have a frequently asked questions section for each of those. It's very consumer friendly and consumer facing so that you aren't bogged down in the 10 or 12 page privacy statement if you want to get to those answers.

[Senator Randy Brock (Vice Chair)]: Right. And is that common in your industry with competitors?

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: So, 23andMe definitely has a privacy center that's very similar. I'm less familiar with MyHeritage. So before 23andMe went into bankruptcy, we were in a coalition with them to work on privacy legislation. I'm much more familiar with them than MyHeritage, but I imagine they have something similar.

[Senator Randy Brock (Vice Chair)]: When you look at privacy notices of various kinds, including the thorough detailed privacy notice versus the more user friendly notices of the type that we've been talking about here. Exactly. Do you have any measurements that you keep as to how many people look at them?

[Senator Alison Clarkson (Chair)]: We do. Yeah. Oh, good.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: I'd say I'm sure we have access

[Senator Alison Clarkson (Chair)]: to People actually, I would particularly think with this subject, with this issue and they're sharing their genetic data, they are more careful than they are with many of the other websites that they just Yeah.

[Senator Randy Brock (Vice Chair)]: I agree. Do you have, though, statistics that would tell us, do 1% look at the detail or does 99% look at the details?

[Lisa (Chief Privacy Officer, Ancestry)]: We do collect that data. I don't have it on hand now, but we can absolutely provide that data. We collect data as to who clicks to read the privacy statement. We know how many visitors we have to the privacy center that Richie just mentioned, and we know how many users opt in to sharing. This is data that's that's kept real time.

[Senator Randy Brock (Vice Chair)]: That would be very, very helpful, not just the number who go to each platform or part of the platform, but the total compared to the total number of people who are there that could but don't.

[Senator Alison Clarkson (Chair)]: Right, terrific. Thank you, Lisa, and thank you, Richie. Is there anything else, before we turn to our next witness?

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: Yeah, just to conclude, we appreciate the committee's openness to our comments and particularly want to thank Todd with the Attorney General's office for his willingness to meet with us and discuss our differing viewpoints. Our ask is that we consider the cost of a PRA and balance what's most effective to provide consumers in Vermont with privacy protections without bringing unnecessary costs to companies that partnered well with the state over the years. We're more of a target than 23andMe. They're now a nonprofit who spent all of their money settling their data breach lawsuits. And, you know, it's one of those things where we are more successful because we have been better stewards of privacy and data protection, and we still want to get into a situation where our costs of doing business in the state go up for doing the right thing all along.

[Senator Alison Clarkson (Chair)]: Right. I also would like the data on the number of PRAs you actually have to deal with. That would be great in the jurisdictions of that. I don't want us to be always on PRA. We're also the consumer protection committee, and it's very important for us to give our consumers the right to certain types of action, which we have in part, but it wouldn't. So I think we also have to balance that.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: Yeah. We can give you the information on actual lawsuits, but there's also other examples where we've had to expend dollars to avoid litigation in the first place. Know this can be familiar with Daniel Law in New Jersey. We were served with the same notice that a lot of companies were, and unlike the companies that got sued, we made the decision to pull those elections offline. And it took weeks and hundreds of thousands in overtime to get those collections back online. In the meantime, consumers across the country who wanted to access New Jersey historical records or records that were originated in New Jersey from their family trees could not. And at the end of the day, we really didn't have the data that they were looking for in their demand letter. We don't have a whole lot of living person data on ancestry.com. We joke sometimes that we're Facebook for dead people.

[Senator Alison Clarkson (Chair)]: Well, that's, the only connection is so important. Yeah.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: But it's a situation where we never got to court, we still had to spend a lot of money to avoid the litigation, even though we did not have the data that they asserted we may have in their letter. Right.

[Senator Alison Clarkson (Chair)]: Who owns Ancestry?

[Senator Thomas Chittenden (Member)]: Blackstone, owned by private equity.

[Senator Alison Clarkson (Chair)]: They're Blackstone. Blacks on the investment company. Yeah. Okay. Interesting. Okay. Great. Thank you both. More to follow. Yeah. This is terrific. And now we're gonna shift to a very different aspect of it because Matt Valero for the first time in my tenure on this committee, we are welcoming our defender general to set an economic development housing and general affairs.

[Matthew Valerio, Vermont Defender General]: And quite a surprise it is.

[Senator Alison Clarkson (Chair)]: I And I you know, we what goes around comes around. You and I have been the

[Matthew Valerio, Vermont Defender General]: We had many years.

[Senator Alison Clarkson (Chair)]: Many years in between. So thank you for being open to joining us because one of the issues that came up as we were first exploring this bill was what's the intersection of data privacy of genetic data privacy with law enforcement enforcement and with how do we access when you're defending somebody, how can when genetic material is important to the case, how and where do you access that genetic information? How how does this work interplay with your work? And I think we're wanting to appreciate that a little more fully than I think we, have.

[Matthew Valerio, Vermont Defender General]: Yeah. I have to say that, I paid no attention to this bill whatsoever.

[Senator Alison Clarkson (Chair)]: Introduce yourself, and we should introduce ourselves because you don't necessarily know us. Yeah. I

[Matthew Valerio, Vermont Defender General]: I'm not valerio. I'm the defendant general because I know folks who've been here for quite some time. Some people live right right next door.

[Senator Alison Clarkson (Chair)]: Oh, are you guys neighbors? Yeah. Okay. Funny. Yeah. And but and have you met Tom? Because Tom Goodman. Nice to meet you. And we're missing Kesha Ram Hinsdale. But Who I also Yes. I know. Who you decades. Correct. Or. A long Decades, you've known me for decades.

[Matthew Valerio, Vermont Defender General]: You for decades because you were

[Senator Alison Clarkson (Chair)]: Nobody that other committee. They I was.

[Matthew Valerio, Vermont Defender General]: You apparently escaped from at some point.

[Senator Alison Clarkson (Chair)]: I did. And after four years, I went to. Yeah. But I love serving on House Judiciary. So, anyway, tell us how this you know, because we also have Trish Conti following who's the director of the forensic lab. But how you know, when you have a case, how do you how do you access genetic material? How can we make sure we don't cut off some avenues for you?

[Matthew Valerio, Vermont Defender General]: Everything I I don't think you can honestly cut off avenues for us because everything that we deal with is really constitutionally based. And so if something is collected by the state, and it is it is either relevant to the case or might lead to relevant evidence in the case, then the defense is entitled to it constitutionally. And if for some reason the state disagrees with that, we file a motion to come down the production of it, and a court would decide if some for some reason, there is a privacy right or something. Haven't seen one that arises in the you know, because genetic material is all about identity. You know? And if identity is an issue in a case, or might or the and or genetic material might feed the evidence that bears on identity or some other issue in the case, then then the the, defense, or prosecution, depending upon if you wanna get a warrant, could get a court order entitled to it. And I don't think you can you can't legislate around constitutional rights to produce, exculpatory material in a case. If you cross that line, it would be unconstitutional. And so I've never seen a situation, and I've, believe it or not, I'm now approaching forty years as an attorney and, you know I believe it. Yeah. Many, many, many, you know, back when I was a litigator with many murder cases, sex cases that involved, you know, back then I read serology, but they also were using DNA testing in the later, probably last five years, my litigation career, and obviously been kind of managing the situation from the defendant general's office for the last twenty five years. So I've not seen situations where we have where we are aware of genetic material that we couldn't get our hands on if we needed it. So There's also well, we also know there's also a statute that was passed when you were on the house judiciary committee that's proposed out of the senate, which is the Innocence Detection Act Yeah. Which also bears on the availability of DNA and the ability to test many years later. We've had a couple of cases in Vermont that were overturned and the exonerations received, as a result of DNA that was collected decades ago in the eighties or early nineties, and so it was still available and then was tested and showed something different than what resulted from the conviction. So we have these tools, but they are all in the in the primary criminal case, they are constitutionally based. And I don't really have any I, obviously, I spent some time, not a lot of me, because it was pretty late in the day. Yeah. No. We other things I was doing. But the I don't have any pretty good concerns about your bill that's infringing on anything that that we need to do. You know, the bigger concern that I would have is for then I tell my my daughters. I have four kids, three daughters, and son, and they want this genetic testing stuff. They're willing to spit in anything and send it out, see where their family, came from and what percentage of their genetic makeup is from Italy versus England and that kind of thing. And you're gonna have to pry my DNA from my cove dentate hand, as they say. They're willing to just go out

[Senator Alison Clarkson (Chair)]: and Their DNA is yours too.

[Rick Segal (Office of Legislative Counsel)]: Yeah. Well

[Senator Alison Clarkson (Chair)]: Good point.

[Senator Kesha Ram Hinsdale (Member)]: Only only half of

[Senator Alison Clarkson (Chair)]: You gave it to them.

[Matthew Valerio, Vermont Defender General]: Or only some amount of it. Bottom line is, as I say to them, you know, when you put this out to a private entity, you don't know what they do with it. And they aren't reading the warnings, I guarantee you. They just wanna know, you know, what part of Italy or half of their family came from. And, you know, they're very happy to be part of civilians, which I told them, you know, that was the part that caused the problems in my family.

[Senator Randy Brock (Vice Chair)]: But in any way Right. So that's

[Senator Alison Clarkson (Chair)]: valid great archaeological interest. Yeah. Right.

[Matthew Valerio, Vermont Defender General]: But that's the bottom line is that that when it gets out there, if if law enforcement went to a private company and said, hey. I want the, you know, I want the Valerio DNA. I would be concerned if a private entity that you believed you were providing this to, confidentially was able to just say, oh, here you go. Without, kind of a a court analysis of the of the need for that. I the there's there's a section in the bill on top of us pointed it out to me, thankfully, that talks about notwithstanding any other provisions section direct to consumer genetic testing company shall not disclose. And basically will require warrant. Right. Exactly. So at least then there's some court screening for that sort of thing. And I I understand that I think there's some dispute over this particular provision. I was unaware of it. Like I said, I haven't been following the bill. I

[Senator Alison Clarkson (Chair)]: didn't know that. Has there been because I didn't think that the house actually took testimony on the legal as on the law enforcement aspect of this. I think this is new to this committee. It having been raised in this committee.

[Matthew Valerio, Vermont Defender General]: Well, for me, it was raised four minutes ago. So

[Senator Alison Clarkson (Chair)]: Well, that might mean real time as police were saying, real time Yeah. Approves.

[Matthew Valerio, Vermont Defender General]: Right. The the bottom line is whenever I I I'm concerned that any company who takes the information under with the understanding of the consumer that it is private, totally private, the only thing you learn about it is gonna go to you, would share that in any other way with anybody else, in particular, government. And so, you know, we have a warrant if there's a warrant requirement, fine. At least there's a review, and then there's something that could be challenged down the road if it was done inappropriate. To me, that's that's that's what it's it's when the government wants to see that's basically your, you know, property and the your property being the the NA or the results of that, that they they it should be reviewed by a court.

[Senator Alison Clarkson (Chair)]: That's what we're asking for. Right. And that's what these allow for in this bill. Tom Thomas?

[Senator Thomas Chittenden (Member)]: I don't disagree with anything you just said. The question that's come up in this bill specifically is the right for consumers to request for materials records be deleted. Does that give you pause if all of a sudden I have information out there and there's a link to somebody that I'm related to that might have committed a crime or so on, the court's interested in getting their hands on something that had been submitted, but I care about whoever it might link to. If I can have that data be deleted, does that cut give you any pause or consideration for how we might wanna handle those things?

[Matthew Valerio, Vermont Defender General]: No. It's for two reasons. Number one, one of the things you can follow you can never really figure out, who you know, the companies are getting this stuff, and my the ones that my a couple of my kids have done it. They're spitting something. But you don't real but there's a thing about chain of custody of evidence. Right. You don't know who's really spitting in the tube. And so that evidence as a better chain of custody would probably not be admissible anyway. The other thing is if the person was somebody who's a person of interest or listed on the witness list or that kind of thing, there are ways for us to get nontestimonial evidence anyway. We could move for DNA testing, get a court order for DNA testing. The state can do the same thing. Get a warrant, move for nontestimonial evidence, and we'll they get a court order to get that as well. And then and then it can be litigated that way. So on the one hand, the way these folks collect this stuff, they kinda are taking the word for whoever's sending it in, who's doing the spitting, so to speak. And I don't think that would stand up to, you know, the evidentiary standards you need to get it into evidence. And secondly, we all have other means of getting that DNA if we need to get

[Senator Alison Clarkson (Chair)]: But that's for the individual. What is interesting about the genetic data that we're also talking about is the access to who they are related to, which may or may not also be of interest and which may be blind one point. But that's you it sounds like you feel you have the tools available through the court to access whatever you need to access. And I don't know. My guess is Ancestry has been quite useful. And

[Matthew Valerio, Vermont Defender General]: none of this is perfect. Any of these tools that we have that they currently exist.

[Senator Alison Clarkson (Chair)]: Except the food and sizzle.

[Matthew Valerio, Vermont Defender General]: Well, they got supposed to be perfect. I'm actually supposed to go there in June, so I guess we'll see.

[Senator Alison Clarkson (Chair)]: Because the you know, Stanley Tucci's exciting at your kids.

[Matthew Valerio, Vermont Defender General]: You know, the thing with my kids, they're, you know, 30 to 25 years old. Call them kids, but I dare. Yes. Like I tell them, I

[Senator Kesha Ram Hinsdale (Member)]: was a lawyer then.

[Matthew Valerio, Vermont Defender General]: To be sure, by the time my son was 45, I'd have practicing for a year and a half. Right. In any event, it is this this doesn't have particular concerns around me. Oh, great. It took to a chance to think about it a little bit. It's been a while since, you know, kind of the implications of sort of collateral collection of DNA has come to our to my attention. It isn't something that

[Senator Alison Clarkson (Chair)]: Oh, that's just why we exist. Keep you on your toes there, Valerio.

[Matthew Valerio, Vermont Defender General]: I think you wanted me in here one time.

[Senator Alison Clarkson (Chair)]: Think just one time

[Matthew Valerio, Vermont Defender General]: before you left.

[Senator Alison Clarkson (Chair)]: Great. Good to see

[Matthew Valerio, Vermont Defender General]: you. But, you know, I'm happy to answer any questions. I just don't I don't see any particular concerns. I am comfort comfortable that constitution and existing rules for the collection of evidence in DNA provide the what we need to gain, test, and analyze and also protect the confidentiality as it relates to the criminal justice system, which is really all I care Any

[Senator Alison Clarkson (Chair)]: other questions for Matt? I think some of my concerns was incorporated in Thomas' question to you, which is if somebody found out that there there had been related issues that they could delete or damage if they had

[Matthew Valerio, Vermont Defender General]: their Yeah. And, you know, if if I were law enforcement, I would be more interested in that. You know, we have when you are convicted of a felony, when you want probation, for example, they collect DNA. And then, there are times when that may be expunged. That includes the elimination of the DNA. In our world, that is kind of the bigger that's not part of this at all.

[Tricia (Trish) Conti (Director, Vermont Forensic Laboratory)]: That's

[Matthew Valerio, Vermont Defender General]: And so we we just kinda did we there's this very small intersection of, the two two circles of criminal and civil liability. And I feel like the constitution is supposed to have

[Senator Alison Clarkson (Chair)]: protect Protect and enable. You

[Rick Segal (Office of Legislative Counsel)]: Protect K.

[Matthew Valerio, Vermont Defender General]: The privacy and enable us to get the information we need to get to the kind of influence.

[Senator Alison Clarkson (Chair)]: Okay. Great. Thank you. So we're gonna follow-up your testimony with Tricia Conti, who is the director of the Vermont Forensics Lab. Tricia, are you able to join us? Thank you, Matt. Thank you. Good to see great to have you.

[Matthew Valerio, Vermont Defender General]: Well, in the last couple of weeks.

[Senator Alison Clarkson (Chair)]: It's the last couple of weeks. I think it's January. Okay. Yeah. Remember, we've hunting till somebody else this morning. Yeah. That's Keep up.

[Senator Randy Brock (Vice Chair)]: Alright.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: Right. See you next week.

[Senator Alison Clarkson (Chair)]: Goodbye. See you soon.

[Senator Kesha Ram Hinsdale (Member)]: See you.

[Senator Alison Clarkson (Chair)]: Tricia, welcome.

[Tricia (Trish) Conti (Director, Vermont Forensic Laboratory)]: Good morning.

[Senator Alison Clarkson (Chair)]: Good morning.

[Tricia (Trish) Conti (Director, Vermont Forensic Laboratory)]: For the record, Trish Conti, Director of the Forensic Laboratory. Can everybody hear me okay?

[Senator Alison Clarkson (Chair)]: Yes, we can hear you. Good to see you. Perfect. And we appreciate, I don't know if you were on earlier when we introduced ourselves. Yes. You were. Right. Yeah. So take away, we are very interested, as you've heard in our conversation with Matt. You collect and keep the genetic data material that law enforcement collects, I assume. Would you just be kind of to talk to us about how you how it's accessible, who we're exploring this world of how we protect people's privacy, but also make it available to the entities that need need it for certain specific reasons.

[Tricia (Trish) Conti (Director, Vermont Forensic Laboratory)]: Sure. Just a few things. I have been present for testimony today. I did review the earlier house version of the bill several weeks ago when it was first on the radar just because it mentioned genetics. I wanted to see if it had any intersection with the work that we do here at the forensic lab. I had no concerns then, and I echo what the Defender General said. I don't now either. But just for awareness, as the forensic laboratory here in the state, we do DNA testing. So obviously that has a genetic component. We have two primary avenues that we perform DNA analysis. One is for testing of evidence collected at crime scenes. So those evidenceary samples will be submitted to us. It could be anything from a body fluid that's collected to skin cells that are left behind, any manner of types of evidence. So those will come to us. We will test them. And depending on the nature of the case, the testing methods that we perform are very singularly focused on one particular type of end product. We don't do the same type of analyses that these genetic data labs do. The information that we have as an output is very different from the information that they have, Those results are provided to law enforcement, whoever the agency is that submitted the evidence to us in the interim. If we don't have anybody to compare those results to, like if there's no identified victim or suspect, they will just get whether or not we found a male or a female and how robust the profile is. When it comes to identification to an individual, that would be either through a non testimonial sample standard that the Defender General mentioned. Somebody would be required through a warrant or through consent to have a DNA cheek swab taken, sent to us, and we would profile that to compare it to any unknowns which are collected from crime scenes. So that's the criminal arm. On the other hand, we have the state DNA database, which Rebecca Wilkins, I also invited to attend today in case anybody had questions on that. She is our state CODIS administrator, which is the DNA database that feeds into the national FBI program. Those are the samples that Matt mentioned, where if you are convicted of a felony or a certain set of misdemeanors, you are mandated by statute to have a DNA sample collected sent to us. Rebecca processes those, and if the person does in fact have a qualifying offense, they get uploaded to the DNA database. They get searched against other unknown evidentiary profiles which are circling in there to help identify the density of leads. If we are able to identify a match through the CODIS system, then those CODIS samples that come to us do not have chain of custody, which is very important. We will identify the person through a confirmation process and send a report to the agency and suggest that they go forward and obtain a non testimonial evidentiary chain of custody based sample from them to redo the process to make sure that that sample does in fact match the evidence that was collected at the crime scene. So there are a significant number of checks and balances involved in these processes that we go through to make sure that the data we put out is indeed identifiable to a person and not an erroneous result. But again, none of this is really impacted by the potential language that's put forward in the bill.

[Senator Alison Clarkson (Chair)]: My creative mind is actually thinking of all the ways it could because you think of serial killers who may have had siblings that were targeted. You know, they had no links. They were all foster kids. Anyway and then you might wanna know who was out there that they were actually relating to. And I couldn't think of all sorts of things at night. But thank you. This was very helpful. Any questions? Thank

[Senator Kesha Ram Hinsdale (Member)]: you. You're welcome.

[Senator Alison Clarkson (Chair)]: So glad you've been staying on top of this bill. That's great. And Rebecca, lovely to have you join us. Thank you for joining us. If you do have any concerns as we go through it, please be in touch.

[Tricia (Trish) Conti (Director, Vermont Forensic Laboratory)]: Absolutely.

[Senator Alison Clarkson (Chair)]: Great. Thank you. Terrific. Thanks so much. Thomas Weeks, we're gonna end the day with you. And then, Todd, if you have anything to add or clean up or anything to do clean up, We're happy to have you. Thomas, welcome. Good to have you.

[Thomas Weiss (Public Witness, Montpelier)]: Thank you. Good morning. I'm Thomas Weiss, resident of Montpelier, and I thank you for inviting me to testify this morning. It's been a few sessions since I testified on personal information, data privacy, and what I'm going to be talking to you today about is not content of AGENT six thirty nine, but where it's located and statutes. I became involved on this topic, the first date of birth of bill in 2008. Concern at first was that the bill paid for

[Rick Segal (Office of Legislative Counsel)]: the date of birth the

[Thomas Weiss (Public Witness, Montpelier)]: everything in public and what was allowed to what was required to be disclosed in the data breach and what was allowed to be withheld from the public. By the time the data broker bill came over here to the committee, my concern had spread to disparate the weakness of data elements in the various subchapters, which is chapter 62, and how the new entity handling personal information, which is data regarding data brokers back then would integrate into the sustained and strength regularly attended. My letter is on the Internet's value of German commitments to the program for reference. So some progress was made then and later to integrate this new definition to these data elements and regulate the antigen, which still works to integrate with nutrients to this data. So unfortunately, I feel that H639 moves in the opposite direction. It separates rather than intergrades. It does not integrate the new thing with this thing. It separates it by creating a new chapter, a title of mine, on data privacy with new definitions, assisting data elements. I'm a civil engineer with experience in writing and understanding contracts and regulations. Of the lessons for not only preparing a contract is to not write up the same thing twice. Say it once, not once. Say it twice, it's different. Means something different in two locations, and you have to figure out how to resolve those when you figure out the client's little bit of what contract required. Weights of confusion, potential conflict. Chapter 62 regulates the needs and control of data elements by multiple entities. So trying to put page six thirty nine into context with the larger data privacy and personal protection standard. Each entity is regulated differently. The categories of regulated entities are data collector, data collectors, businesses for protection of social security numbers, operators, which includes privacy, businesses for construction documents and being personal information, and covered businesses for the age appropriate designs. Any entity might be regulated by more than one category. Entity that is a data collector deals only with elements of personal information, so that entity might also be uncovered personal information, maybe even also a data book. And there are some common elements in those categories. And so it then can become confusing if they're defined differently as to how an entity that's data collector in some areas, data broker in other areas, and has common elements in how it actually handles that. So H2Lab and addresses some of the problems learned from experience since research can take us over the world. Have have gotten to you. And I only mentioned to you that it poses to change the definitions of dumb terms used in page six thirty nine and the chapter 62. And the definition of biometric data, the question that is sample for problems defining the same phrase in different locations. There are three definitions, though two of them are the same.

[Senator Alison Clarkson (Chair)]: The

[Thomas Weiss (Public Witness, Montpelier)]: differences definition make a difference in this case, maybe, maybe not. We all know. However, the point is that changes creep in to finding the same thing in multiple locations. And my letter provides a table that prepares and contracts with three definitions. I'm not going to go over it, but see what's happening. And our lunch happens almost here, obviously. So the same thing happens more significantly with the definition of genetic data. When data collect requires genetic data, the definition, genetic data covering reporting requirements for data breach. Chapter 62 is different than protected privacy under page 36. I don't see that there should be a difference based on page six thirty nine in subchapter, in chapter 16.2, instead of in a new chapter itself, would use a common set of definitions according to all of the chapter so that we don't get these differences and what are they doing. And that's why I heard from this late book six thirty nine, it's a new chapter in chapter 62. Again, my letter contains a table that compares and contrasts the good evidence of genetic data. So under page six thirty nine, one of the solutions so the difference is that under 8.639, genetic data includes a page and a half of description of what is not genetic data. That page and a half description is not the definition that is in chapter 62, and that definition of chapter 62 is only used in the page and. So one of the exclusions is the definition of de identified data. So it appears that a direct consumer genetic testing company can transfer de identified data to another data without the consent of the individual. I failed to see why the identified data are not genetic data in one set of circumstances. It's large genetic data and a seventh set of circumstances. My recommendation was to place the content of page six thirty nine in subchapter, chapter 62, kind of place all the definitions that are in page six thirty nine into the main definitions section, chapter 62, and resolve the differences. So page six thirty nine finds body met that data is done differently than the existing chapter 62, then resolve And I can't really give you guidance as to

[Senator Alison Clarkson (Chair)]: Well, that is why we have our legislative council. So if this is the right moment, I'd love to have Rick respond to your concern. Could I have another Two minutes.

[Thomas Weiss (Public Witness, Montpelier)]: Another minute so to finish my conversation. I'll have Rick

[Senator Alison Clarkson (Chair)]: respond Okay. Before we have to

[Thomas Weiss (Public Witness, Montpelier)]: and resolve any difference between definitions, considering how they will affect the terms in all of chapter six to two. And I would suggest, recommend also changing the term genetic information, the definition of personally identifiable information in genetic data. Genetic information is not defined in chapter 62, But I believe that previous testimony this morning suggested removing that information from somewhere.

[Senator Alison Clarkson (Chair)]: And

[Thomas Weiss (Public Witness, Montpelier)]: But right now, it seems to extended personally identifiable information that applies to data breach as to data forward. So those are my recommendations. Did have another section of privacy notices in clear language, but senator Brock raised that issue quite well, so I won't say any more to that. You're aware of the issue, and you're aware of my concerns. So I'll leave it

[Senator Alison Clarkson (Chair)]: at And we have a very comprehensive memo from you to us. So we're grateful for that. Thank you. But do you want to go up there or do you want to speak? Okay. So Rick is thank you, Thomas. You're welcome. Rick is going to respond.

[Rick Segal (Office of Legislative Counsel)]: Good morning, sir. Good morning. Rick Segal with the office of legislative counsel. I'll address mister Weiss' comments. And then if you have questions about the bill, happy to answer those. Didn't hear the first part of the testimony because I was in a different committee, so I may have missed a question or two. I appreciate the testimony, mister Weeks. I've spoken to him offline about this and other bills that didn't work for Bill. I do wanna say one thing. There's no testimony that indicated that there is a incorrect definition or there's a legally problematic issue with the way these bills are structured. The issue is that it could be confusing. I think if this testimony that if you're looking at the Title IX, Chapter 22, you have data brokers, you have a kid's code bill that's in there, and his request is you put these genetic information prophecy act in that as well. That's something I could have done. However, the way that chapter was created, subchapter one definitions apply to the entire chapter, Doesn't always fit like you want it to fit. These bills are all unique, and you all are unique, and when I draft a bill, ideally, I'm like, yeah, it makes sense here, but then during testimony, during requests from members of the general assembly, you want to change it. And so for this bill, I suspect the General Assembly will have a comprehensive data privacy

[Senator Kesha Ram Hinsdale (Member)]: bill at the end of the session.

[Rick Segal (Office of Legislative Counsel)]: Because of that We're in now.

[Senator Thomas Chittenden (Member)]: Because of that, I think you need

[Rick Segal (Office of Legislative Counsel)]: to have a specific data privacy chapter, which would include at least two things, this genetic privacy, and then a comprehensive data privacy bill. If you look at the way Congress puts their bills together, it's very, very messy. It's never in order, it's never sequential, so this is not something that is easy to make it readable, comprehensive, in a structured manner that you would like. So my answer is, I do think about these things. I do want people to be able to find the law, be able to understand it, but it's my opinion, and it is my office that, do wanna make that clear, our office does construct the ESA. We decide where things go. And in my opinion, where this bill is placed currently still makes the most sense. It's title It's still title nine. It's out the chapter. It's title It's a new chapter. Chapter 61 A would be a new chapter. And 62 is where we have the pertinent information which Mr. Weiss indicated.

[Senator Alison Clarkson (Chair)]: Which has KICS code in it, and

[Rick Segal (Office of Legislative Counsel)]: We're also running out of numbers with that I mentioned before. Consumer protection is 63. We are running out of numbers at some point, not this year. We may need to reconstruct those chapters to We're not gonna charge you to do that. No, no, I would find can cross over. This is a summer project. It's a huge project. So all these things are fixable, but again, it's my opinion that where it is currently written makes no sense. So

[Senator Thomas Chittenden (Member)]: you mentioned definitions. I think you're out of the room at this part. I'm going to have follow-up questions from those that have testified here, but I'm looking at the definition of biometric data, I feel like one of the concerns that we haven't distinguished or separated is non invasive observable characteristics versus things that are from physical aspects like actual samples, biological or physiological. Do you see a reason that we should revise the biometric data definition to be a non invasive observable characteristics which are in your list, but I don't necessarily see DNA as observable or non invasive. See DNA extracted from a physical characteristic. I don't know if this is what the testimony was alluding to, but it seems like we have some strong words. I'm not a lawyer, you are, but it seems like we have mixed in the actual extraction of the data from physical stuff with you either were confusing that or combining it with being able to see somebody's eyeball, being able to see their face,

[Rick Segal (Office of Legislative Counsel)]: being able to see their face.

[Senator Alison Clarkson (Chair)]: A physical characteristic. A manifested physical characteristic. Well, you pointed out, DNA is manifest in how you work. I mean, is a piece of how you look is the charcterified.

[Rick Segal (Office of Legislative Counsel)]: So if I'm not mistaken, the reason that phrase is defined is because it's used under publicly available permission. And that's maybe something to consider. If look on page six of the bill, public available information does not include biometric data collected by a business about a consumer without a consumer's knowledge. So at the very end of the bill, the very last line of the bill, I believe, besides the effective dates, is subsection D, page That's what I have to say. Nothing in the subchapter shall be construed to affect access to publicly available information. Right. So that's to ensure that if a person, the consumer, has made something available by themselves to provide the distributed media, which would not be genetic material. Because since you took this whole explicitly for evidence that that would not be, and it also includes biomaterial data. So I think

[Senator Thomas Chittenden (Member)]: In your mind, DNA, my DNA coding is biometric data?

[Senator Randy Brock (Vice Chair)]: In my mind?

[Senator Thomas Chittenden (Member)]: In the mind of this bill?

[Rick Segal (Office of Legislative Counsel)]: No, because, let me read this, the phrase that way. Means data generated from the technological process into consumers unique biological Sorry, where,

[Senator Alison Clarkson (Chair)]: what page are you on with that?

[Rick Segal (Office of Legislative Counsel)]: Page one, I'm looking at the biometric data. Any biological, physical, or physiological characteristics that allow or confirm unique ID of the consumer including those items.

[Senator Thomas Chittenden (Member)]: Which I see is all non invasive, all those items. But I see blood samples, tissue as much more invasive, physical activity.

[Senator Alison Clarkson (Chair)]: Well, it's extracted. I think to use your first word is better. It's extracted. It's not invasive.

[Senator Thomas Chittenden (Member)]: So let me put your suggestion or what's maybe the question is if that should Separating biometric data, noninvasive observable characteristics of a physical person as opposed to which but if this is a moot point and not relevant, I'm just trying to get my hands dirty on what we're talking about here. Whereas data about my DNA coding, which requires physical aspects, should that be explicitly separated the term biometric data? In this, Bill, what's happening if not necessary. So this is actually a good point.

[Rick Segal (Office of Legislative Counsel)]: This is why Mr. Weiss brings up, you have different definitions of bioactive data, because the world of this bill is direct to consumer genetic testing companies. That's the world, right? These companies that have your data, the consumers have rights. It's the still one that has, right? We're not talking about your iPhones that has your face scanner to unlock your phone, right? That is biometric data, but in this world, it doesn't, that doesn't really apply. It only applies to publicly available information, is mentioned at the very end of the bill, which says this should not affect access to that. So I think we can have that conversation

[Senator Thomas Chittenden (Member)]: That's for this

[Rick Segal (Office of Legislative Counsel)]: something else you can consider as

[Senator Alison Clarkson (Chair)]: visit. Well, think, and we have a request from ancestry.com to separate it out. Our

[Rick Segal (Office of Legislative Counsel)]: data profile Is that the request?

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: Yeah. I mean, if we're talking about the biological sample, let's call it the biological sample. And biometric data's gonna be regulated elsewhere.

[Senator Kesha Ram Hinsdale (Member)]: I see. But you own your own.

[Senator Thomas Chittenden (Member)]: I think I see the distinction, but I don't see the distinction in this definition because it does say physiological and biological. Maybe I need a scientist to define those terms. Yeah. Todd's trying to say

[Senator Alison Clarkson (Chair)]: Come on. I Welcome. You're gonna do a c hump. I I knew you

[Rick Segal (Office of Legislative Counsel)]: Anything else I could say?

[Representative Emily Krasnow]: Stay stay right there.

[Senator Alison Clarkson (Chair)]: Okay. Todd.

[Rick Segal (Office of Legislative Counsel)]: I just

[Todd Daloz (Vermont Attorney General’s Office)]: called. I'm happy to so Todd Delos

[Senator Alison Clarkson (Chair)]: is You're gonna come back. Don't worry. But Happy to come back.

[Todd Daloz (Vermont Attorney General’s Office)]: Right now. The the only flag I would say, senator, is to my mind, the key piece that separates, sort of taking a piece of someone's body versus viewing how somebody's body represents is the definition of biometric data, which, again, as Rick flagged, is this is copied over from kids code and some other spots in statute.

[Senator Thomas Chittenden (Member)]: Doesn't make a right though, right?

[Todd Daloz (Vermont Attorney General’s Office)]: Well, I'm just saying it's in there because of the reference and publicly available information and because publicly available information is carved out of regulation under this statute, Right.

[Senator Thomas Chittenden (Member)]: Which

[Todd Daloz (Vermont Attorney General’s Office)]: I think also speaks to your concern around if you're out there on Ancestry's using Ancestry's tools and you've created a network and then all of sudden you realize law enforcement might be looking at you, well, arguably a lot of that conversation is gonna be publicly available information. It's not the information from Ancestry. You've chosen to use that. And I'll but let me just bounce back, and then I know Richie's gonna add that. We then need to Absolutely. But to your question, senator, biometric data means data generated from technological processing of a consumer's unique biological, physical, or physiological characteristics. That's different than how genetic testing is identified. Now, may make sense and I'm happy to chat with Ancestry around like biological sample being defined here, subject to the interest here. But I I understand your your concern around separation. I think to my mind, it makes sense to have the definitions in here, even though this bill really doesn't regulate.

[Senator Alison Clarkson (Chair)]: And I just wanna make the last word.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: One quick point because this has come up several times. Ancestry does not allow law enforcement to use our services for any judicial proceeding or official investigation, full stop. So and we can talk about that more next time, but we we don't allow law enforcement on our site for investigating purposes.

[Senator Alison Clarkson (Chair)]: So even with a warrant, they aren't able to access?

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: With a warrant, but if they're looking for genetic information, they're doing a phishing expedition. Right? Because they're gonna be like, we have this sample from a crime scene, and we want to access the genetic data of your 28,000,000 DNA customers who aren't suspected of a crime. That's a fourth amendment violation. And we would fight a warrant presented to us vigorously if we were presented with one.

[Senator Alison Clarkson (Chair)]: Great. Okay. More to follow. We'll we'll be doing a lot more work on this.

[Richie Engelhardt (Head of Government Affairs, Ancestry)]: I'm looking forward to going to the couple of weeks.