The Washington State House of Representatives has been considering legislation (HB 1031) that state Representative Jeff Morris, the bill's prime sponsor, has hailed as an "Electronic Bill of Rights." The legislation, aimed squarely at the growing field of Radio Frequency Identification (RFID) technology, reflects Washington State's "critical" interest in protecting consumers' personal information -- especially when it is collected without their consent or knowledge. The bill is intended to establish and define such consumer rights so that "manufacturers and sellers of new, innovative technologies have a predictable set of known, individual rights to be aware of before offering their technology for sale or use in the state of Washington."
Four Consumer Rights
HB 1031 delineates four fundamental consumer rights regarding the sale or use of RFID and similar "electronic communication devices."
Notice — the right to receive prior notice from any person selling or issuing a product containing an RFID device. The bill requires any person distributing items equipped with RFID devices or like technology to notify consumers of the presence of the devices at the point of purchase unless the devices are disabled or removed prior to sale.
Consumers must be told how to deactivate or remove the RFID tags and must consent prior to any reactivation of the devices. And, consumers may not be coerced into keeping the RFID device active to allow for the exchange, repair or return of the item.
Labeling — the right to expect a person selling or issuing an RFID device to provide clear and conspicuous labeling.
Security — the right to expect a person selling or issuing an RFID device to implement accepted means of securing any personal information stored in the device. The bill requires businesses to use industry best practices to secure personal information. In addition, any person who sells or issues RFID-tagged products or reads RFID tags that contain a consumer's personal information must obtain prior consent from the consumer.
Seek redress — the right to seek redress if a consumer is harmed by a person's failure to comply with the provisions of the legislation. The legislation also provides for enforcement by the state attorney general, who can sue a person that violates any provision of the bill to recover the greater of actual damages or $10,000 per violation. Where the defendant has engaged in a pattern of violations, the court could award treble damages as well as reasonable attorneys' fees and costs.
The legislation was approved by the Washington State House Committee on Technology, Energy and Communications. The committee added an exemption for products and services regulated by the federal Food and Drug Administration and an amendment that renders invalid any provision that conflicts with federal law or regulations. As we were going to press, Representative Morris announced that the bill had stalled due to intense lobbying by a coalition of 34 companies and industry groups and will not be reviewed by the full House this year.
Support and Opposition
Prior to voting on the legislation, the House Committee heard testimony on current and potential "abuses" of RFID technology from Dr. Katherine Albrecht of Consumers Against Supermarket Privacy Invasion and Numbering (CASPIAN) that included tracking every step a consumer takes while shopping and wirelessly accessing personal information with hand-held scanning devices.
Cell phone manufacturers have opposed the legislation because it would restrict the development and deployment of RFID-equipped phones that allow users to order products by placing the handset close to an advertisement or billboard, among other useful consumer applications.