RFID Law Blog

While agreeing to the request from the Department of Agriculture to fund a program to use RFID tags to identify and track animals -- like cows for Mad Cow Disease -- the House of Representatives passed legislation yesterday prohibitting any of the funds being used until Congress receives a comprehensive plan for how much money is ultimately needed and how it will be spent. Apparently, since the Dept. of Agriculture envisions having the tags scanned and entered into a private-sector controlled database, they have told Congress that they don't know exactly how much it will ultimately cost. Not a great answer. There also may need to be legislative changes to authorize certain elements of the RFID program -- changes that probably could and should have been done BEFORE trying to get the program rolled out. Oddly enough, Congress likes to have a say in how programs they are funding are operated.

A separate amendment was offered that would have removed funding for the program altogether -- not just blocking it pending a report to Congress. However, that amendment was defeated by a significant margin.

I haven't followed this issue - not even close - so I welcome correction, but I believe this is the product of a dispute about who owns the data produced by the program. You've characterized it here as a "private-sector controlled database" but I believe opponents argue that the USDA is attempting to do a big data-grab. If the information collected would be available to the government, or shared among competitors, that's exactly what they're doing.

My cow. My RFID tag. Your data? Does not compute.

There are several issues involved. As you say, there is an issue as to who controls the data - the animal owners or the USDA. This "data control" issue is complicated by the fact that the USDA wants to require animal owners to use their own forms to verify the health of their animals - especially for those being sent overseas -- rather than certificates already being provided by private sector vendors. A growing "mission creep" problem within the federal government.

I was referring, however, to the debate in the House over whether dollars could be spent on the data-collecting tags. An amendment to eliminate the funding altogether (on grounds it was wasteful and unnecessary) was defeated handily. A compromise of sorts was passed that would prohibit the money from being spent until Department of Agriculture can provide information to the Congress on the comprehensive plan for these tags, how much money it will take, etc.

The immediate response from the Department of Agriculture was that they likely wouldn't be able to predict how much it would ultimately cost because the use of the tags and control of the data would be in private sector hands rather than their own. Perhaps that is laying the groundwork for future arguments from DoA to Congress that the only way to be responsive to their interest that the money be spent wisely is to have DoA control the data.

The bottom line of my post, which may not have been as clear as I had hoped, is that these kinds of dealings with the goverment are not as straightforward as they may seem. There are lots of competing interests and decisionmakers -- bueaucrats, political appointees, Congressional authorizing committees, Appropriators, etc.

Without any kind of policies determining how RFID will be used within the Federal government (what privacy measures are appropriate for what kinds of applications; who controls the data; who has liability or accountability for the system, etc) each and every individual program like this one at DoA will be random and unpredictable.

It will be better for the RFID industry to play a role in helping to shape RFID policies to ensure a reliable and predictible market, avoid government decisions that result in a public relations backlash against the technology, etc.