RFID Legislation: What You Need to Know about the Debate
As most people reading this know, technological advances are still being made in RFID development, and its widespread rollout is a work in progress. Naturally, governments are interested, and state legislation concerning RFID, which first appeared in 2004, has increased, and will likely continue to do so. While some of the legislation has merit, much of it is based upon faulty knowledge of RFID or overblown fears.
In order to prevent legislative activity from harming this burgeoning industry, the RFID community must become involved in the legislative process. This article reviews the basic types of RFID legislation that have been introduced, and offers some thoughts on steps the RFID community can take to ensure future legislation does not cripple future expansion.
Types of RFID Legislation
The legislation has generally fallen into one of several categories:
Privacy Related:
oRestrictive: This legislation seeks to restrict how RFID can be used, and holds the most potential for harm for the RFID industry. The most restrictive bill to date is California Senate Bill 768, which at this writing is awaiting signature (or veto) from Governor Schwarzenegger. It would place numerous restrictions on the use of RFID technology in an attempt to address privacy concerns.
oRemoval or Deactivation of RFID Devices: This form of legislation would require removal or deactivation of RFID devices at the time of purchase or before the consumer left the business. Legislation along these lines has been introduced in New Mexico and Tennessee.
oDisclosure: This type of bill would require disclosure that RFID technology is in use, either on the product, or in the store where it is being used, or both. These bills often require that the product have a disclosure on it stating that an RFID device is contained in the product and that it can transmit unique identification information both before and after purchase. Some of this legislation has required that a symbol be placed on products that indicates it contains an RFID device. Massachusetts, Missouri, Nevada, New Hampshire and Tennessee have all seen such disclosure bills, though none have passed to date.
oExtreme Privacy Bills: A Wisconsin bill that was signed into law this year bans employers and government agencies from requiring people to have RFID implanted in them. Similar bills have been introduced in Ohio, and in Missouri. The Rhode Island Governor has twice vetoed bills that would prohibit state or local government from using RFID to track the movement or identity of employees, students, or clients as a condition of a benefit or service. While such bills are not in and of themselves problematic, they do foster a mistaken impression about the potential abuse of RFID technology.
Uninformed privacy legislation is what those who have a stake in RFID have to fear most. One state's rules could conceivably throw a kink in the an entire company's use of RFID by putting in place different rules for different jurisdictions Moreover, if a state proposes a law that requires something that is not technologically possible or cost prohibitive, it could wreak havoc on a businesses use of RFID.
Drug Pedigree Legislation: These bills require that drug wholesalers be able to trace prescription drugs from factory floors to the pharmacy to prevent counterfeiting and to aid in recalls. While these bills do not all mention RFID technology, it is well known that RFID technology is well-suited to this function. Such bills have been introduced in numerous states including Florida, Indiana, and Kansas.
Amending other laws: A Utah bill that has been signed into law amended that state's computer crime law to explicitly declare that proper use of RFID technology does not constitute a computer crime. To the extent existing laws could unwittingly bar use of RFID technology, legislation such as this may be necessary.
Bills that Encourage Use of RFID: These include bills like those introduced in West Virginia and Washington that would encourage RFID use for the monitoring of sex offenders, and bills such as ones in Tennessee and Washington that encourage use of smart card technology. These bills are also good for the RFID industry as they pave the way for more widespread use of RFID and illustrate its many beneficial uses.
Study Committee / Task Force: Typically such commissions study an issue (often when the legislature is not in session) and then release their findings in a report which includes recommendations for legislation. A bill was enacted in New Hampshire that would create a commission to study RFID technology in the public and private sectors, and its privacy implications. Similar bills were introduced in New York and in Maryland.
These committees offer the RFID community an opportunity to shape the debate over RFID technology. If it appears legislatures are very interested in RFID, the RFID community should be involved in the drafting of study committee bills to ensure they are written such that they focus not upon potential RFID abuses, but upon the positive uses for RFID technology, by both the government and the private sector. For example, a Washington state bill (that did not pass) would have created a RFID study commission to look at the potential for using RFID for traffic management, to increase revenue generation for the state, and for use at the state's border crossings, in addition to privacy concerns. Bills such as this certainly bode for a better result then ones that include a litany of privacy concerns (like the New York state bill). Moreover, it will be incumbent on the RFID industry to actively engage with these study committees in order to educate lawmakers regarding RFID's applications and to show them that in most cases the potential abuses are best handled by the marketplace instead of by regulation.
Next Steps
It is virtually inevitable that state legislators will continue to introduce legislation affecting and seeking to regulate RFID. Going forward, the RFID community will need to be aggressive and proactive in educating lawmakers on RFID technology, and on why most proscriptive legislation would harm this nascent industry. They will need to take seriously the privacy concerns of legislators and the public, while focusing upon legislation that prohibits egregious abuses and that facilitates further RFID expansion.
About the Author
Lawton Jordan is an associate with McKenna Long & Aldridge LLP. He serves as the state and local government relations coordinator for RFID issues in firm's Radio Frequency Identification (RFID) practice and can be reached at ljordan@mckennalong.com.
Your summary is remarkable and eerily reminiscent of fears and legislative hysteria in the early days of bar code technology. Twenty years ago bar code technology was just emerging with early retail usage. Bar code technology then was falsely accused as being "big brother technology" by misguided and uniformed critics. They were all wrong and as time has demonstrated, bar code technology is safe, reliable and worthy of widespread use. Today no one thinks twice about the technology when they can self-check out at the grocery store or home building center. Bar code technology is a convenience technology that has proven itself thousands of times over.
What the current crop of RFID critics (including Katherine Albrecht) over look is that many of the negative issues attributed to RFID technology can (and has) already been achieved by bar code technology. Tracking of products, purchases and people has been done within a distribution center, a manufacturing factory, or a retail store for years. What this technology has brought is efficiency, reduction in errors, and lower material handling costs which has benefited all of us immeasurably.
Trying to pin restrictive, disclosure and privacy issues on the use of superior RFID technology is like saying we should all go back to typewriters because personal computers are subject to hackers, viruses, and bugs. That would be an improvement??
There is no conspiracy in the use of RFID technology. There is no need to panic. RFID is simply the next generation of bar code technology and it is evolutionary in nature. Things will improve even more as line-of-sight is a moot issue in tracking things.
Please! Everyone - get a grip!!
Jerry --
Thanks for your comments. Lawton did a great job analyzing the pending state legislation. This industry has an opportunity to help shape good public policy that will advance the use of this emerging technology to the benefit of consumers; or we can react to policymakers who are often responding to anecdotal or exaggerated claims about what the technology can and can't do.